The opinion of the court was delivered by: ORLOFSKY
ORLOFSKY, District Judge:
Plaintiff, Robert T. Hulmes ("Hulmes," or the "plaintiff"), filed this product liability action against defendants, Honda Motor Company, Ltd., Honda Research and Development Group, Ltd., Honda R & D North America, Inc., and American Honda Motor Company, Inc. (collectively referred to as "Honda"). Plaintiff, Sherry Hulmes, Hulmes's former wife, has filed a per quod action which has been consolidated with Hulmes's action. Jurisdiction is based on diversity of citizenship and an amount in controversy in excess of $ 50,000, exclusive of interests and costs. See 28 U.S.C. § 1332.
The issue presented for this court's resolution is whether evidence of the plaintiff's consumption of alcohol prior to the accident in which he was injured may be introduced at trial, in light of New Jersey's evidentiary rule barring such evidence unless it is accompanied by independent "supplementary evidence" that the plaintiff was unfit to drive at the time of the accident. Specifically, this court must decide a previously unresolved question of New Jersey law: whether evidence that the plaintiff's blood alcohol level at the time of the accident was at or above .10%, constitutes sufficient "supplementary evidence" of intoxication. Because I conclude that evidence of a .10% or higher blood alcohol level is sufficient "supplementary evidence" of the plaintiff's intoxication in this case, and that the danger of unfair prejudice does not substantially outweigh the probative value of this evidence, plaintiff's in limine motion will be denied.
I. Facts and Procedural History
On July 28, 1991, Hulmes was severely injured as the result of a collision which occurred while he was riding a three-wheeled All-Terrain Vehicle ("ATV") designed and manufactured by Honda. Hulmes and his brother, Nicholas Hulmes, were riding their ATVs on the paved roadway of West Hunterdon Avenue in the City of Mantua, Gloucester County, New Jersey. There is some dispute as to how fast the ATVs were going at the time of the accident. Plaintiff's eyewitness testimony estimates their speed at about 17-20 m.p.h. See Dep. of Corey Thomas at 95. Defendants' accident reconstruction expert will testify that Hulmes's ATV was travelling at a speed of between 35-40 m.p.h. Report of David Mercaldi, Ph.D. at 8. It is undisputed that Hulmes's ATV came into contact with the ATV operated by his brother, although the force of this "collision" is an issue that is vigorously contested by the parties. Following the "collision," Hulmes's ATV rolled over, Hulmes was thrown from the vehicle, and both the vehicle and Hulmes came to rest some yards away. As a result of this accident, Hulmes suffered a spinal fracture at C3-C4 and spinal cord lesion, resulting in permanent quadriplegia.
Deborah Connelly, who lived nearby, heard the accident and went to the scene. Dep. of D. Connelly at 13, 19. Ms. Connelly testified that Nicholas Hulmes removed an unopened bottle of beer from the plaintiff's waistband shortly after the accident. Id. at 25-27. Ms. Connelly also testified that she did not smell alcohol on the plaintiff's breath, but, in view of the fact that the plaintiff was lying on the ground, she couldn't tell if the plaintiff was intoxicated. Id. at 39.
The Advanced Life Support Unit from Underwood Hospital arrived at the scene soon after the accident. Because Hulmes did not have a patent airway, the Advanced Life Support Unit paramedics inserted an endotracheal tube and ventilated Hulmes, using a bag and mask resuscitator. Dep. of C. McNulty at 98-99. Shortly thereafter, the trauma team from Cooper Hospital arrived by helicopter. The flight nurse, Catherine N. McNulty, R.N., testified that she continued ventilating Hulmes with the bag and mask resuscitator during transport to the trauma center, periodically suctioning from him an amber fluid that "smelled like alcohol." Id. at 105-108.
Plaintiff's brother, Nicholas Hulmes, testified at his deposition that neither he, nor his brother, had "consumed any alcoholic beverages" on the day of the accident. Dep. of N. Hulmes at 125. A member of the Sewell Fire Company Ambulance Squad and a witness at the scene, testified that Nicholas Hulmes was "belligerent" at the accident scene. Dep. of J. Neely at 24. Neely, however, also testified that he did not smell alcohol on Nicholas Hulmes's breath. Id. At oral argument, counsel represented that Hulmes himself had testified at his deposition that he could not remember whether he had consumed any alcoholic beverages prior to the accident.
The Third Circuit has noted that "in limine ruling on evidence issues is a procedure which should, in a trial court's discretion, be used in appropriate cases." In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 260 (3d Cir. 1983) (citing 21 C. Wright & K. Graham, Federal Practice and Procedure § 5037, at 193-99), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
No doubt in an abundance of caution, plaintiff's counsel has identified over 1400 trial exhibits in plaintiff's portion of the Joint Final Pretrial Order. In the hope of narrowing the issues and expediting the trial of this case, this court granted the parties leave to file appropriate motions in limine. The parties subsequently filed a total of forty-four (44) in limine motions. On July 2, 1996, following a full day of oral argument on July 1st, this court entered an order deciding, or deferring until trial, forty-one (41) of the in limine motions. This opinion and the accompanying order decide one of the three motions taken under advisement following oral argument.
A. Plaintiffs' motion to exclude all references to alcohol consumption by Robert T. Hulmes.
Honda seeks to introduce evidence that the plaintiff was intoxicated at the time of the accident. Specifically, Honda proffers evidence of the presence of alcohol (ethanol) in Hulmes's blood, in an amount of 106.9 mg/dl, as determined by a blood serum test administered on a sample of Hulmes's blood drawn at Cooper Hospital approximately one hour after the accident,. Cooper Hospital Pathology Report at 8. Defendants' toxicology expert will testify that this reading extrapolates to a Blood Alcohol Content ("BAC") in whole blood of .11% at the time of the accident. Report of G. John DiGregorio, M.D. at 2.
A second Honda expert witness opines that the "most likely value for [Hulmes's] blood alcohol concentration" was "slightly above .10%. Plaintiff strenuously contests the accuracy of these extrapolations.
Moreover, plaintiff contends that the results of blood alcohol tests, unless supported by independent corroborating evidence of intoxication, not present in this case, are inadmissible under New Jersey law because the potential prejudicial effect of such evidence substantially outweighs its probative value.
B. The Prejudicial Effect of Evidence of Alcohol Consumption
The Third Circuit has held that, when confronted with the task of balancing the prejudicial effect of evidence of alcohol consumption with its probative value, a district court must look to state law to determine whether the prejudice to the party opposing the introduction of such evidence would be substantial. Rovegno v. Geppert Bros., Inc., 677 F.2d 327, 329 (1982) (relying upon Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d. 85, 89 (3d Cir. 1976)).
Rovegno has proved to be a controversial decision. Judge Van Dusen, in a lengthy dissenting opinion, chastised the panel majority for its holding, declaring that Greiner may not so much have held, as assumed that the Erie Doctrine was applicable to a decision to admit evidence of drinking. See id. at 338 & n.21 (Van Dusen, J., dissenting) (discussing Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938)). There is an on-going and passionate debate about whether state law or federal law governs the admissibility of such evidence. Some authorities have suggested that the application of state law can be justified by simply rephrasing the question as one of the "materiality" under state law of evidence of alcohol consumption, rather than its probative value or prejudicial effect. See 5 Jack B. Weinstein et al., Weinstein's Evidence P 1101  (Matthew Bender 1995); see generally 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5201, at 234 & n.29 (1978 & Supp. 1996) (noting that the Third Circuit, in Rovegno, applied state law, "over vigorous dissent and without discussion of the effect of Rules 401 and 402").
Other courts have concluded that the Rovegno majority discounted the rule of Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965), which held that federal law governed all "procedural" matters in federal courts, even in actions in which state law supplies the rule of decision. See McInnis v. A.M.F., Inc., 765 F.2d 240, 245 n.6 (1st Cir. 1985) (specifically criticizing Rovegno). The true difficulty, however, lies in "ascertaining whether a particular rule [of state law] is 'only evidentiary or is meant to prescribe rights and obligations of the parties not related to fact-finding.'" Weinstein, supra (citing Wellborn, The Federal Rules of Evidence and the Application of State Law in the Federal Courts, 55 Tex. L. Rev. 371, 396 (1977)). Cf. Gasperini v. Center for Humanities, 64 U.S.L.W. 4607, 4610 (U.S. June 24, 1996) ("Classification of a law as 'substantive' or 'procedural' for Erie purposes is sometimes a challenging endeavor.").
Several Circuit Courts of Appeals have disagreed with Rovegno, holding that a determination of the possible prejudicial effect of the introduction of evidence of alcohol consumption is within the trial court's discretion under Rule 403 of the Federal Rules of Evidence, and is not controlled by state law. See Romine v. Parman, 831 F.2d 944 (10th Cir. 1987) (relevancy and prejudice determinations are made under Fed. R. Evid. 403); McInnis, 765 F.2d at 244-45 (1st Cir. 1985) (a panel, which included then-Judge Breyer, ruled that the Federal Rules of Evidence, and not state law, apply to a determination whether to admit evidence of intoxication); Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1153 (5th Cir. 1981); Levitt v. H.J. Jeffries, Inc., 517 F.2d 523, 525 (7th Cir. 1975). Indeed, the Rovegno majority does not explain how the application of Fed. R. Evid. 403, rather than state law, could "rationally affect private ordering or encourage forum shopping." McInnis, 765 F.2d at 246 (citing Erie). The weight of authority seems to support the conclusion reached in McInnis, that, in deciding whether to admit evidence of alcohol consumption, the application of Fed. R. Evid. 403 by a federal court cannot violate the "twin aims" of Erie. Hanna v. Plumer, 380 U.S. at 468.
Honda devotes a significant portion of its brief in opposition to plaintiff's motion to a discussion of the controversy engendered by Rovegno to demonstrate that Honda would prevail on this evidentiary issue if I were to apply Fed. R. Evid. 403, rather than ...