IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,466
LATASHA GRIFFIN, A MINOR, BY AND THROUGH EARTHA GREEN,
AND THE FIRST NATIONAL BANK AND TRUST COMPANY OF
JUNCTION CITY, KANSAS, et al.,
Appellees,
v.
SUZUKI MOTOR CORPORATION,
Appellant.
SYLLABUS BY THE COURT
1. Where evidence is excluded by K.S.A. 60-3307, the district court has no discretion to admit it.
2. Under the facts of this case, a "change in design" in a manufacturer's small sport utility vehicle encompasses a "wholly different design" manifested in the same manufacturer's later generation small sport utility vehicle serving as a replacement to the original. Evidence of the later vehicle is barred by K.S.A. 60-3307(a)(2).
3. Under the facts of this case, admitting evidence of a manufacturer's subsequent product as a reasonable alternative design to the manufacturer's original product could have led a jury to wrongly conclude that the original was defective and that the subsequent product repaired this defect with its new design. As a result, the admission of this evidence was reversible error.
4. Evidence of advancements in technical testing knowledge that was not in existence at the time of the accident vehicle's manufacture is barred by K.S.A. 60-3307(a)(1). Under the facts of this case, its admission was reversible error.
Review of the judgment of the Court of Appeals in an unpublished decision filed February 27, 2004. Appeal from Geary district court; BENJAMIN J. SEXTON, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed and the case is remanded. Opinion filed December 9, 2005.
James D. Oliver, of Foulston Siefkin LLP, of Overland Park, argued the cause, Wesley A. Weathers, of Weathers & Riley, of Topeka, and Lori A. Schweitzer, of Becherer Kannett & Schweitzer, of Emeryville, California, were with him on the briefs for appellant.
Lynn R. Johnson, of Shamberg, Johnson & Bergman, Chartered, of Kansas City, Missouri, argued the cause and Karen A. Eager, of the same firm, was with him on the brief for appellees.
Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, was on the brief for amicus curiae Chamber of Commerce & Industry and The Kansas Civil Law Forum.
Daniel H. Diepenbrock, of Miller & Diepenbrock, P.A., of Liberal, was on the brief for amicus curiae Kansas Association of Defense Counsel.
The opinion of the court was delivered by
NUSS, J.: This is a products liability case. A sport utility vehicle rollover killed driver Wendy Griffin and injured one of her passengers, her sister Latasha. Wendy's estate, Wendy's heir-at-law, and Latasha ("Griffin") sued Suzuki Motor Corporation (Suzuki) claiming that the design of the sport utility vehicle, a 1994 Suzuki Sidekick, was unreasonably dangerous and defective. The jury found Suzuki 30% at fault and found Wendy 70% at fault, resulting in a judgment of $2.7 million for Latasha against Suzuki.
Suzuki appealed seven evidentiary rulings. The Court of Appeals reversed and remanded for a new trial because it held that two of the rulings violated K.S.A. 60-3307(a)(1) and (2) of the Kansas Product Liability Act (KPLA), K.S.A. 60-3301 et seq. Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004. Specifically, the Court of Appeals held the district court should not have allowed into evidence Suzuki's successor vehicle to the Sidekick, the Vitara, as a reasonable alternative design to the Sidekick. It also held the district court should not have allowed into evidence certain engineering and testing standards to analyze the Sidekick because they were not in use when the vehicle had been manufactured in 1994.
We granted Griffin's petition for review pursuant to K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court admit evidence in violation of K.S.A. 60-3307(a)(2) because it allowed the J-2 vehicle (Vitara) as a reasonable alternative design to the J-1 vehicle (Sidekick)? Yes.
2. Did the district court admit evidence in violation of K.S.A. 60-3307(a)(1) because it allowed testing and engineering standards not in use when the 1994 Sidekick was manufactured? Yes.
Accordingly, we affirm the Court of Appeals, reverse the district court, and remand for new trial.
FACTS
Because the facts of the accident and the procedural history of the case are not at issue in this appeal, we adopt the following facts as set forth by the Court of Appeals:
"Wendy Griffin was driving her sisters, Latasha and Evelyn, and her brother, Willie, home in May 1999 on U.S. Hwy 77 in Geary County. Wendy was driving a 1994 Suzuki Sidekick. When she removed one hand from the steering wheel to adjust her skirt, the car drifted onto the gravel shoulder on the right. Wendy steered hard left, then hard right, causing the vehicle to slide for a distance until it finally rolled over a number of times. Wendy, Latasha, and Willie were found outside the vehicle after the accident. Wendy later died. Latasha is now a paraplegic with diminished vision in her left eye from injuries she received in the accident. Willie eventually recovered from his injuries. Evelyn, who used her seat belt, was not ejected from the car and received minor injuries.
"The 1994 four-door Sidekick was designed, manufactured, and sold by [Suzuki]. Eartha and Willie Green, Wendy and Latasha's mother and stepfather, purchased the vehicle used in October 1996. The car was built in January 1994.
"Ultimately, three cases were consolidated for trial: Latasha Griffin, by and through her parent, Eartha Green, against [Suzuki] and American Suzuki Motors Corporation (ASMC); Eartha Green, as heir at law of Wendy Griffin against [Suzuki] and ASMC; and Eartha Green and National Bank and Trust Company, Co-Administrators for the estate of Wendy Griffin, against [Suzuki] and ASMC. The trials were bifurcated by dividing the liability and damage portions into separate proceedings." Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004.
Griffin's theory of liability was that the 1994 Sidekick was unreasonably dangerous and defective in design and that the defendants negligently designed, manufactured, and tested the vehicle. Defendants responded that the sole cause of the accident was Wendy's negligent driving.
During discovery Suzuki became convinced that Griffin wanted to prove her theory of liability by using Suzuki's replacement for the Sidekick, the Vitara (J-2), as a reasonable alternative design to the Sidekick (J-1). Accordingly, Suzuki filed a motion in limine to exclude all references to the J-2.
The district court denied Suzuki's motion as well as Suzuki's motion to reconsider. Suzuki made a third written effort, which the court denied. As a result, evidence of the J-2 as a reasonable alternative design to the J-1 (1994 Sidekick) was later admitted at trial.
Suzuki filed two other motions in limine, both of which concerned an April 6, 1999, report by General Motors engineer Ronald Leffert. The first motion sought to prohibit a Griffin expert witness, Wade Allen, from testifying about any opinions formed by his reliance upon Leffert's report. The second motion sought to exclude General Motors' Vehicle Technical Specifications for Stability Margin. The heart of Suzuki's objections concerned Leffert's formula for computing purported minimum rollover safety margins for short-wheelbased vehicles such as the J-1 and J-2.
The record on appeal is not entirely clear as to the district court's exact rulings regarding these two motions. The Court of Appeals concluded, however, that the district court had issued an order in limine prohibiting certain Allen evidence, e.g., Leffert's formula but then permitted the prohibited evidence at trial. Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004. The record discloses that significant amounts of Allen's information concerning Leffert's report, including Leffert's formula, were presented to the jury at trial.
After 15 days of trial in which 22 witnesses testified, Griffin dismissed all of the claims against American Suzuki Motors Corporation. The jury rendered a liability verdict, allocating 70% of the responsibility to Wendy and 30% to Suzuki. The parties stipulated to Latasha's past and future economic and noneconomic damages. This resulted in a final judgment for Latasha against Suzuki in the amount of $2,700,438.63.
ANALYSIS
Standard of Review
The Court of Appeals agreed with Griffin and determined its standard of review for the two evidentiary-based issues on appeal was abuse of discretion citing, among other cases, Floyd v. General Motors Corp., 25 Kan. App. 2d 71, 72-75, 960 P.2d 763, rev. denied 264 Kan. 821 (1998), and DiPietro v. Cessna Aircraft Co., 28 Kan. App. 2d 372, 373-74, 16 P.3d 986 (2000), rev. denied 271 Kan. 1036 (2001). We disagree with this reliance and the Court of Appeals' conclusion in the instant case. For the reasons set forth below, we agree with Suzuki and hold that our review is de novo.
At the outset, we observe there is no dispute that the evidence at issue is relevant, our threshold consideration when examining appellate challenges to a district court's admission of evidence. See State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). Generally, all relevant evidence is admissible. K.S.A. 60-407(f); State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004).
Although the evidence is relevant, "overriding considerations of policy," e.g., Kansas statutes, may require its exclusion. See City of Wichita v. Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 (2005) (citing 4 Gard & Casad's Kansas C. Civ. Proc. 4th Annot. § 60-407 [2003]) (the trier of fact should have all of the relevant evidence which is offered unless some overriding consideration of policy or expediency requires its exclusion). Suzuki argues that the statute, K.S.A. 60-3307, absolutely requires exclusion from evidence the J-2 vehicle and certain of Leffert's information. In other words, there is no room for judicial discretion.
Accordingly, we must interpret this statute. The interpretation of a statute is a question of law, and this court's review is unlimited. An appellate court is not bound by the district court's interpretation. State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (interpretation of the evidentiary statute K.S.A. 22-3220 is a question of law).
Additionally, if we conclude the evidence is excluded by statute, the district court is generally prohibited from admitting it, i.e., there is no discretion to admit. In Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 869 P.2d 598 (1994), this court held that per K.S.A. 60-452 and 60-453, offers and acceptances of settlements are generally inadmissible and the "admission of the evidence of settlement was not within the discretion permitted a trial court." 254 Kan. at 720-24; K.S.A. 60-454 (evidence of liability insurance inadmissible to prove negligence or other wrongdoing);see also Huxol v. Nickell, 205 Kan. 718, Syl. ¶ 2, 473 P.2d 90 (1970) (Under K.S.A. 60-451, evidence of subsequent remedial conduct inadmissible to prove negligence or culpable conduct in connection with specific event).
Finally, "we have observed that even abuse of discretion standards can sometimes more accurately be characterized as questions of law requiring de novo review." State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005). There, we cited, among other things, Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 (1996), which stated:
"Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse of discretion standard does not mean a mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it makes an error of law. . . . The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions."
Accord Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 779, 89 P.3d 908 (2004) (abuse is found when district court has gone outside the framework of statutory limitations).
Discussion
Issue 1: Did the district court admit evidence in violation of K.S.A. 60-3307(a)(2) because it allowed the J-2 vehicle (Vitara) as a reasonable alternative design to the J-1 vehicle (Sidekick)?
Our analysis begins with the statute. K.S.A. 60-3307 provides:
"(a) In a product liability claim, the following evidence shall not be admissible for any purpose:
(1) Evidence of any advancements or changes in technical or other knowledge or techniques, in design theory or philosophy, in manufacturing or testing knowledge, techniques or processes in labeling, warning of risk or hazards, instructions for the use of such product, if such advancements or changes have been made, learned or placed into common use subsequent to the time the product in issue was designed, formulated, tested, manufactured or sold by the manufacturer; and
(2) evidence of any changes made in the designing, planning, formulating, testing, preparing, manufacturing, packaging, warnings, labeling or instructing for use of, or with regard to, the product in issue, or any similar product, which changes were made subsequent to the time the product in issue was designed, formulated, tested, manufactured or sold by the manufacturer.
"(b) This section does not require the exclusion of evidence of a subsequent measure if offered to impeach a witness for the manufacturer or seller of a product who has expressly denied the feasibility of such a measure." (Emphasis added.)
To help prove Griffin's theory of liability of the J-1's (1994 Sidekick) dangerous and defective design, she intended to place in evidence the J-2 as her reasonable alternative design. Evidence of a reasonable alternative design in products liability litigation is allowed in Kansas. As this court stated in Delaney v. Deere and Co., 268 Kan. 769, 772-73, 999 P.2d 930 (2000):
"[W]hile the final test is one of consumer expectations, 'in a products liability case involving a claimed design defect, the parties . . . may present evidence as to . . . the feasibility of a safer design. Likewise, evidence may be introduced as to the importance of the need or needs served by the product and its design, the technical and economic feasibility and practicability of serving those needs with a safer design, and the availability of other products, if any, to serve the same needs.' [Citation omitted.]"
Suzuki argues that the J-2 evidence is prohibited by K.S.A. 60-3307(a)(2) as italicized above. Consequently, on March 27, 2002, Suzuki filed a motion in limine to exclude all references "to the new design of the Chevrolet Tracker and the Suzuki Vitara introduced in the 1999 model year, also referred to as the J-2 vehicle, which succeeded the J-1 Geo Tracker and Suzuki Sidekick, sold in various configurations between the 1989-1998 model years." In support of its motion, Suzuki made allegations in support of its apparent argument that the changes from the J-1 to the J-2 were design changes, e.g., subsequent remedial measures which were inadmissible. It stated in relevant part:
"3. It is anticipated that plaintiffs will attempt to suggest that design changes made to the J-2 Chevrolet Tracker and the Suzuki Vitara are admissible in this action as a subsequent remedial measure.
"4. It is also anticipated that plaintiffs will attempt to admit and discuss in front of the jury rollover testing of a J-2 Vitara conducted in 2001 by their expert John Marcosky as an attempted comparison of its performance to that of the 1994 four-door Sidekick.
"5. As a general rule, evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct. K.S.A. 60-3307(a)(2); K.S.A. 60-451; Floyd v. General Motors Corp., 25 Kan. App. 2d 71, 74-75, 960 P.2d 763 (1998); Patton v. Hutchinson Wil-Rich Manufacturing Co., 253 Kan. 741, 758-759, 861 P.2d 1299 (1993). Indeed in Kansas product liability litigation, evidence of subsequent remedial measures 'shall not be admissible for any purpose,' with the only exception being to impeach the testimony of a witness for the manufacturer or seller who has expressly denied the feasibility of the proposed remedial measure. K.S.A. 60-3307(b); DiPietro v. Cessna Aircraft Co., 28 Kan. App. 2d 372, 376, 16 P.3d 986 (2000).
"5. [sic] Defendants do not deny the feasibility of the design changes made in the J-2 vehicles, and none of their experts is expected to deny the feasibility of these changes."
Suzuki also appeared to argue that the changes were not design changes because the J-2 represented a wholly new design. Accordingly, they were irrelevant and therefore inadmissible.
"6. Also, the J-2 Suzuki Vitara and Chevrolet Tracker represent not a design change but a wholly new design. As such their new design is irrelevant to the design of the subject 1994 four-door Sidekick. (See Inoue Affidavit, Appendix Exhibit B to Defendant GM's Motion for Summary Judgment.)
"7. Kansas courts have recognized that evidence involving other vehicles not similar to the vehicle at issue in a suit may properly be excluded as irrelevant. . . . Betts v. General Motors Corporation, 236 Kan. 108, 114,689 P.2d 795 (1984). . . . Floyd v. General Motors Corp., 25 Kan. App. 2d 71, 72, 960 P.2d 763 (1998).
"8. Numerous jurisdictions have likewise recognized that evidence in product liability cases should be limited to models which are the same or substantially similar to the subject model. [Citations omitted.]
"9. In this case, the only similarity between the 1994 four-door Sidekick and the J-2 Suzuki Vitara is that they are both sport utility vehicles. Plaintiffs simply cannot present any evidence of substantial similarity between the two models. Apropos of plaintiffs' claim that a defect in the 1994 four-door Sidekick led to plaintiffs' accident, defendants note that the 1994 four-door Sidekick and J-2 Vitara have different track widths, suspensions, steering systems and other components, but that there is no evidence that any of these new design features was instituted to correct any deficiency in the handling/stability or rollover resistance of the J-1 Sidekick. As such, they are not 'substantially similar' and any evidence relating to the J-2 Chevrolet Tracker or Suzuki Vitara is irrelevant.
"10. Plaintiffs' attempts to refer to the new design of the J-2 Chevrolet Tracker or Suzuki Vitara are made only with one purpose in mind – to alienate the jurors from the defendants."
Griffin responded on April 9 that K.S.A. 60-451 and 60-3307(a)(2) did not apply. She pointed out that the J-2 incorporated several of the design features that plaintiffs' experts would testify should have been part of the original rollover resistance design, parameters, and characteristics of the J-1. As a result, the J-2 was evidence of reasonable alternative design recommended by her experts. She therefore argued that plaintiffs should not be precluded from presenting evidence of their reasonable alternative design simply because that design was incorporated in a vehicle designed and manufactured by defendants.
Griffin characterized the J-2 as "the plaintiffs' 'go to' vehicle with regard to rollover resistance design, parameters, characteristics and performance." She specifically argued K.S.A. 60-451, i.e., subsequent remedial conduct, did not apply because Suzuki's witnesses had testified that the change was not remedial, but a "wholly new design."
Moreover, according to Griffin, K.S.A. 60-3307(a)(2) did not render the J-2 evidence inadmissible since Suzuki admitted that the J-2 represents not "a design change, but a wholly new design" and that the J-1 and J-2 are not substantially similar. As a result, under the statute, the J-2 was not "evidence of any changes made in designing . . . the product in issue, or any similar product . . . . " She argued that defendants could not have it both ways, i.e., could not assert in their pleadings that the J-2 is not the product in issue and is not a similar product, and still assert that Griffin's J-2 evidence is inadmissible pursuant to K.S.A. 60-3307.
At the April 10 hearing on the motion, Suzuki clarified that it was arguing in the alternative. It claimed that Griffin either had to prove that the J-1 and J-2 vehicles were substantially similar, in which case 60-3307 barred the evidence of the J-2, or, if Griffin could not show that the vehicles were substantially similar, then the J-2 evidence was not relevant.
Griffin responded that Suzuki had to be held to its pleadings where it stated that the J-2 was not the product in issue or a similar product; that the J-2 does not incorporate design changes, but is a wholly new design; and that there is no evidence of substantial similarity between the J-1 and the J-2.
The district court ruled at the April 10 hearing:
"I put a lot of thought and a lot of research into this. And, quite frankly, folks, this Court feels that the main contingent in this matter is that the go-to vehicle is a vehicle, and that was produced by and manufactured by the defendants.
"So, I do consider that, or would this argument be going on if this was GM or Chrysler or Ford or someone in that regard?
"Statute is very clear. Is it the product in question? It's been specifically denied. And the defendant – and the plaintiff is not saying that it is, and the defendant has stated that it's a wholly different vehicle.
"Is it similar? Again, it's a wholly different vehicle. And the Court feels that the plaintiff has the right and opportunity, as the case law would dictate, that they have the right to present a reasonable alternative design.
"This Court has not heard that information as to – and believes that to be a question of fact for the jury as to whether or not that is a reasonable alternative design.
"But for those reasons, and a literal reading of 60-3307(a)(2), this Court will deny the motion in limine in that regard." (Emphasis added.)
On April 25, 2002, Suzuki then filed a motion to reconsider the denial of its motion in limine. It continued to argue that the J-1 and J-2 are "similar products" under 60-3307 and therefore the J-2 evidence should be excluded. As support it stated: "The Sidekick design was 10 years old, so Suzuki replaced the Sidekick with a new, second generation design – the Vitara. It is not the same vehicle, but it is a new design for Suzuki's small SUV product, i.e., a similar product."
Suzuki attached to its motion a deposition excerpt from a Suzuki representative, Masatoshi Nakamura, who testified that the "J-1 is a first generation Tracker and Sidekick." He also testified that the J-2 is "a second generation Tracker and the Vitara." As in Suzuki's initial motion in limine, it again referenced the affidavit from Suzuki engineer Yoshihisa Inoue.
Griffin responded that defendant's arguments did not change the basic fact – the J-2 is evidence of a vehicle that incorporates plaintiffs' reasonable alternative design ("go-to" vehicle) and is not evidence of a design change in the J-1, but rather is a wholly new design.
At the April 26 hearing on the motion to reconsider, Suzuki also argued that excluding its J-2 did not prohibit plaintiffs' experts from asserting an alternative design. Rather, the experts simply could not use Suzuki's J-2 as the alternative design to Suzuki's J-1 Sidekick. It also emphasized that Suzuki's substantial improvements and changes did not detract from the fact that the J-2 was simply the second generation of the J-1 and became Suzuki's successor small SUV.
After hearing oral arguments on the motion to reconsider, the district court appeared to clarify its earlier ruling. It stated it was not relying upon similarity/dissimilarity. Rather, 60-3307 did not exclude evidence of the J-2 because the J-2 was not a change in the J-1, but was "a wholly new design."
"Court again knows that this is a very sensitive issue in this case, and as such, has delved and given it quite a little bit of time. Folks, I've reviewed the material from the last hearing, the case law, and, or course, the motion of the defendant in this case, which was very informative. But the Court's opinion does not change.
"The Court did not make this determination [of J-2's admissibility] on finding that the Tracker or the Vitara are not similar vehicles. The Court made this decision in applying 60-3307(a)(2) to the facts in this case.
"The facts in this case are that, defendants have alleged that, one, this was not a change in design; and, two, is not a similar vehicle, but, again, a wholly different design, not an upgrade, not an alteration, not a design change, or planning, or formulating, testing preparing, manufacturing, all of those things, it is not a change in any of that, it's a wholly new design.
"As such, based upon that, this Court has found, and will still find, that 60-3307(a)(2) has its place, but it's not in this case. The facts do not – that have been presented to this Court are different than the facts and the inadmissible evidence that is considered and should be kept out of 60-3307(a)(2).
"The reason being – again, I'll be very clear, this is not evidence of a design change, and it's a wholly new design. Court will find that 60-3307(a)(2), for those reasons, is not applicable. Evidence comes in." (Emphasis added.)
On May 2, 2002, – 5 days before trial began – Suzuki filed a brief in support of its evidentiary objections regarding the J-2. It argued that because the court had twice ruled the evidence of the J-2 was admissible because it was a wholly new design and therefore not similar to the J-1, then the evidence consequently had to be irrelevant to whether the J-1 had been defectively designed. In short, it renewed its alternative position from the original motion in limine. It again cited the Yoshihisa Inoue affidavit to argue the J-2 was dissimilar.
The court denied the requested relief, essentially concluding that the designs of the two vehicles were wholly different; that they therefore did not constitute changes; and that as a result the J-2 evidence was not excluded by 60-3307.
Accordingly, at trial the jury heard testimony from yet another Suzuki representative, engineer Eiji Mochizuki, during Griffin's case in chief. He testified through a translator that the J-2 vehicle is a completely new design. The J-1 had a truck-like ride with a four- passenger capacity, while the J-2 had a five-passenger capacity and was developed to be like a passenger car with a powerful engine, a good ride, and quiet operation.
The Court of Appeals held the admission of the J-2 evidence was reversible error. In doing so, it focused on the similarities between the J-1 and the J-2, concluding that "[a]mple evidence of product similarity was presented at trial." Griffin v. Suzuki Motor Corp., No. 89,466, unpublished opinion filed February 27, 2004. It then described in some detail the similarities between the vehicles. The court seemingly rejected Griffin's argument that the statements in Suzuki's motions were counsel's binding admissions and also that any error was invited by Suzuki.
We disagree with this approach because the determination of a "wholly different design" was a preliminary finding of fact necessary to an evidentiary ruling made by the district court; searching the record for evidence to the contrary exceeds the scope of an appellate court's authority, as explained below.
Before this court, Griffin continues to devote considerable effort to argue that Suzuki is conclusively bound by its statements appearing in its initial motion in limine on the issue. She argues Suzuki's counsel made a binding admission regarding "wholly new design," specifically by paragraphs six and nine of its motion, and strongly suggests Suzuki is estopped from arguing otherwise. She cites, among other cases, In re Estate of Carrell, 183 Kan. 491, 496, 327 P.2d 883 (1958).
Likewise, Suzuki continues to devote nearly the same considerable effort to argue the "admission" was merely an alternative pleading, suggesting it was not a fact but a legal argument.
We need not address the parties' detailed positions regarding the effect of Suzuki's counsel's statements and arguments in Suzuki's motions because the district court's finding is supported by the pretrial affidavit of Suzuki's Yoshihisa Inoue. His affidavit dated February 22, 2002, was referenced in Suzuki's own motion in limine, as well as in its motion to reconsider, and had been provided to the district court as Exhibit F to Suzuki's Response to Plaintiffs' Motion to Add a Claim for Punitive Damages on March 5, 2002. It provided in relevant part:
"1. . . . All of these vehicles [e.g., J1 and J2] are differently designed vehicles with different design concepts and different design programs.
. . . .
"14: The J2 vehicles were designed as replacements for the J1 vehicles in part because the J1 vehicles reflected designs that were more than 10 years old. SMC designed the J2 vehicles from the ground up and incorporated new design features not found in the J1 vehicles.
"15: From an engineering and design standpoint, the J1 and J2 vehicles are substantially different. The center of gravity height, curb weight, gross vehicle weight rating, overall length, interior occupant space, cargo space, fuel tank capacity, body structure, chassis frame, suspension setting and other numerous significant design details differ between the J1 and J2 vehicles.
"16. The J1 and J2 vehicles w