MEMORANDUM OPINION

JAMES H. MICHAEL, JR., Senior United States District Judge.

Before the court is the defendants' "Motion to Reconsider the Court's November 16, 2001 Order In Limine Concerning `Full-Scale Burn Test.'" The defendants argue that, in its November 16 order, this court erroneously excluded Ford's "burn test" by applying incorrectly the "substantial similarity" requirement used to determine whether videotaped recreations can be admitted into evidence. After thorough consideration of the relevant law and the defendants' supporting memorandum, this court concludes that the motion to reconsider is without merit and thus should be denied. Familiarity with the factual background of this case, as described in the court's November 5, 2001 Memorandum Opinion, shall be assumed. Additional relevant facts shall be discussed as they pertain to the defendants' motion.

I.

The defendants have requested that this court permit oral argument on the motion to reconsider now before the court. Specifically, the defendants would like to submit further testimony by defendants' expert and principal sponsor of the "burn test," Mr. Newell, on the "substantial similarity" factors and why, according to the defendants, such applicable requirements have been met. As the defendants note in their memorandum in support of the motion to reconsider, Mr. Newell provided an affidavit in response to the plaintiff's motion to exclude. (Pl.'s Mem. Supp. Recons. at 11.) In addition, oral argument regarding the motion to exclude was presented before the court's November 16 ruling. Thus, in addressing the defendants' motion to reconsider, the court has available for consideration (1) memorandums in support and opposition to the plaintiff's motion to exclude, (2) oral argument addressing the plaintiff's motion to exclude, (3) Mr. Newell's affidavit in response to the plaintiff's motion to exclude, and (4) the defendants' memorandum in support of their motion for reconsideration. Because the parties have had ample opportunity to present the court with arguments addressing the issues now before the court, further oral argument is unnecessary and would most likely be repetitive. Thus, the defendants' request for oral argument shall be denied.

II.

As emphasized in the memorandum opinion accompanying the November 16 order, videotapes purporting to recreate events at issue in a trial must be "substantially similar" to the actual events to be admissible. See Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir. 1995). The rationale for this requirement is that video evidence is likely to be given greater weight by jury members, and have a longer lasting effect, than conventional testimony. See id.; Cynthia A.R. Woolacott, Evaluating Video Evidence, 523 PLI/Lit 211, 211 (1995). That is, one party's polished video recreation of the event at issue may override the jury's ability to consider alternative versions of the event that are presented in a less interesting format. Hinkle, 81 F.3d at 425.

In contrast to videotaped recreations, demonstrations of experiments used merely to illustrate principles forming an expert's opinion are not subject to the substantial similarity requirement. See Hinkle, 81 F.3d at 425; Gladhill v. General Motors Corp., 743 F.2d 1049, 1051 (4th Cir. 1984). Unlike a recreation, jurors viewing a demonstration of abstract principles are more likely to understand that they are not seeing a repeat of an actual event, and thus it is not as necessary for the conditions in the experiment to duplicate those of the actual event. See id. Thus, crucial to the determination of whether a videotape like the one now before this court can be admitted is whether its subject matter is characterized more accurately as a demonstration or a recreation.

The test at issue involved igniting the fuel tank on an exemplar truck positioned in a manner similar to that of the subject vehicle following the accident. The video shows that the fire is concentrated toward the back rather than the front of the exemplar vehicle, contrary to the observations of eyewitnesses at the scene of the accident at issue. According to the defendants, the purposes of this test is to refute the suggestion of plaintiffs' expert Schulz that the vehicle fire on the day of the accident originated at the subject vehicles's fuel tank.

In practice, it is rare to encounter video evidence that is either wholly demonstrative or reconstructive. As the Eighth Circuit noted in McKnight v. Johnson Controls, Inc., 36 f.3d 1396, 1402 (8th Cir. 1993), the difficult cases are those in which "some principles of some kind may be demonstrated but in fashion that looks very much like a recreation of the event that gave rise to the trial." In this case, the defendants have attempted to recreate the ignition of the fire and subsequent burning of the truck instead of recreating the entire accident sequence. That is, the defendants have performed a controlled demonstration recreating certain conditions similar to the accident. See, e.g., Busse v. Bayerische Motoren, 1997 WL 106716, at *7 (E.D.La. 1997) (finding inadmissable a controlled demonstration recreating certain conditions of the accident).

As the court made clear in its November 16 memorandum opinion, the defendants' video more closely resembles a recreation than it does a demonstration of abstract principles. (Mem. Op. at 2-3.) Even if the defendants had intended for the video merely to illustrate general scientific principles underlying their expert's opinion, the test is sufficiently close in appearance to the actual event that there exists a substantial risk of misinterpretation by the jury. Furthermore, while the defendants have not recreated the entire accident sequence, they have portrayed the segment that is arguably the most essential to determining liability in this case. Thus, the risks generally associated with presenting video recreations, and the rationale underlying the substantial similarity requirement to which recreations are subject, are as relevant to the defendant's video as they are to presentations reconstructing an entire accident sequence.

Nevertheless, the defendants argue that even if the "burn test" is to be categorized as a reconstruction, it meets the substantial similarity requirement and thus should be admitted into evidence. The defendants assert that the conditions of the "burn test" were substantially similar to all relevant conditions of the actual event, and that any differences between the test and the actual event were irrelevant to the outcome of the events in question. Specifically, the defendants maintain that, while their test may have failed to take into account the asphalt surface of the road on which the accident occurred, and the fact that the subject vehicle's engine had been in continuous operation prior to the accident, these variances would not have affected the outcome of the test, and thus should not be considered in evaluating substantial similarity. Furthermore, the defendants note that duplicating many of these conditions would have been difficult.

This court is not convinced that the deviations at issue were inconsequential. For example, the presence of asphalt pavement at the accident scene may have affected the flow of flammable liquids from one end of the vehicle to the other, contributing to the spread of the fire. This is because asphalt is more likely than concrete to form ruts that may result in the channeling or accumulation of fluids on its surface. See, e.g., Mark Buncher Carlos Rosenburger, Asphalt Institute, Intersection Strategy 2, available at http://www.aspahltinstitute.org/hot/interstrat2-1.htm#content (last visited Dec. 6, 2001); Intersection Design Takes on New Material, 1 CONCRETE RESOURCES MAGAZINE 6 (2001), at http://www.rockproducts.org/cr/01-6.html (last visited Dec. 6, 2001). The formation of flammable fluid pools on road surfaces following an accident can have a significant impact on the intensity and spread of a vehicle fire. THOMAS J. OHLEMILLER THOMAS G. CLEARY, NAT'L INST. OF STANDARDS AND TECH., ASPECTS OF THE MOTOR VEHICLE FIRE THREAT FROM FLAMMABLE LIQUID SPILLS ON A ROAD SURFACE 2 (1998). In general, "for all but the most insignificant continuous leak rates, ignition of [a fuel tank] leak yields a fire which tends to heat the fuel in the tank and which, in turn, tends to make the leak rate grow." Id. at 7. For example, if a punctured fuel tank is exposed to a pool fire on the road surface, the fuel leak rate from the tank increases, not only spreading a flammable fluid source throughout the vehicle, but also making other automotive fluids more flammable. That is, while gasoline is the only automotive fluid that is above its fire point at normal automotive operating conditions, it can render other automotive fluids flammable even at room temperature if such fluids are mixed with gasoline. Id. at 4. Thus, the intensity of the fire could have increased if the gasoline leaked from the fuel tank in the subject vehicle and mixed with other automotive fluids.

While the defendants argue that the consequences of their use of a concrete surface rather than asphalt pavement cannot be shown, this court finds that fundamental differences between the two surfaces indicate that the defendants' use of a concrete surface could have altered the outcome of the "burn test." Furthermore, this court is unaffected by the defendants' argument that, because treated asphalt requires more time to set than concrete, the defendants would have been unable to complete the test in a timely manner had they used an asphalt surface. While the defendants are undoubtedly inconvenienced by the exclusion of their "burn test," the substantial similarity requirement is based on the premise that the importance of preventing jury confusion and undue prejudice outweighs a party's interest in presenting reconstructive evidence.

In addition to using a concrete rather than an asphalt surface, the "burn test" fails to account for the dynamic nature of the accident at issue. While the subject vehicle veered from the road at a high rate of speed before rolling on its side and sliding to a stop, the exemplar vehicle used in the defendants' test was "carefully" lowered on its side from a stationary position before being ignited. (Def.s' Mem. Supp. Recons. at 7.) The defendants argue that the test's failure to duplicate the roll-over of the subject vehicle is irrelevant to determining the manner in which the fire spread throughout the vehicle. Specifically, the defendants assert the following:

[I]n addition to the fact that replicating the dynamics of bringing the truck to its precise point of rest on the highway would be exceedingly dangerous and physically all but impossible, this distinction is meaningless because it is undisputed that the event which is being recreated — the fire — occurred after the vehicle came to rest. (Def.s' Mem. Supp. Recons. at 5.)

The defendants' argument that the dynamic nature of the accident was irrelevant to the subsequent spread of the vehicle fire is invalid. While a fuel spill fire will generally be located on the ground below the fuel tank, crash dynamics may contribute to the fire's extension well beyond the fuel tank's location. Specifically, the motion associated with a vehicle roll-over has been recognized as contributing to the spread of fire throughout the vehicle, particularly through the passenger cabin. In fact, cars that experience a rollover have a 45/60 percent higher rate of occurrence of fires than vehicles in accidents not involving rollovers. JOSEPH TESSMER, U.S. DEP'T OF TRANSP., AN ANALYSIS OF FIRES IN PASSENGER CARS, LIGHT TRUCKS, AND VANS 40 (1994). For example, in establishing standards for conducting a series of vehicle crash and fire propagation tests in 1995, General Motors and the U.S. Department of Transportation stated that rollover tests would be conducted only after selected burn tests were performed because "the roll may distribute the engine compartment fluids into the passenger compartment . . . . [t]his contamination could serve as an accelerant, significantly altering fire propagation during the vehicle fire test." JACK L. JENSON JEFFREY SANTROCK, U.S. DEP'T OF TRANSP., EVALUATION OF MOTOR VEHICLE INITIATION AND PROPOGATION, VEHICLE CRASH AND FIRE PROPAGATION TEST PROGRAM 820 (1998). Thus, while the fire may have ignited only after the vehicle slid to a stop, the dynamic nature of the accident before the vehicle stopped may have created an environment more conducive to the subsequent propagation of the fire.

Even if the defendants' failure to duplicate the asphalt road surface or the dynamic nature of the accident are by themselves insufficient to support the exclusion of the defendants' "burn test," the failure to take into account the fact that the subject vehicle had been operating continuously for some time prior to the accident significantly reduces the test's probative value. The continued operation of a vehicle at highway speeds increases the temperature of vehicle components which can in turn facilitate the spread of fire. Generally,

[An] external factor relevant to the burning of [a vehicle component] is the extent of heat input from its surroundings. . . . [T]he surroundings may not be a passive absorber of heat radiated from the burning object. Some or all of the other materials/objects surrounding the item of interest may themselves be hot and/or burning. . . . This accelerates both the heating of non-burning portions of the object (raising flame spread rates onto these areas) and the heat release rate from burning areas on it. The net result can be a strongly enhanced burning process with a higher heat release peak achieved sooner. . . . THOMAS J. OHLEMILLER JOHN R. SHIELDS, NAT'L INST. OF STANDARDS AND TECH., BURNING BEHAVIOR OF SELECTED AUTOMOTIVE PARTS FROM A MINIVAN 5 (1998).

Thus, the heat generated throughout the vehicle due to its operation prior to the accident may have had a substantial effect on the spread of the fire throughout the vehicle, contrary to the defendants' claim that such a factor had "absolutely no effect on the results of the demonstration." (Def.s' Mem. Supp. Recons. at 7.) Furthermore, this court is unmoved by the defendants' assertion that "the demonstration vehicle was not driven prior to initiating the fire due to the amount of time required to carefully tip it over and maneuver it into the precisely correct location on the road surface." Id. Running a vehicle prior to the performance of a test like that now in issue does not seem to be nearly as burdensome as the defendant's claim. In fact, in the General Motors/Department of Transportation 1995 Crash Test Proposal, it states that the test vehicle's engine will be allowed to run at higher than idle speeds for a "warm up time"of approximately 20 to 30 minutes prior to the test to obtain engine and other vehicle component temperatures that approximate the higher temperatures associated with various road speeds and loading conditions. JACK L. JENSON JEFFREY SANTROCK, U.S. DEP'T OF TRANSP., EVALUATION OF MOTOR VEHICLE INITIATION AND PROPOGATION, VEHICLE CRASH AND FIRE PROPAGATION TEST PROGRAM 817-818 (1998).

Finally, the defendants argue that they should not be required to incorporate within the "burn test" disputed conditions, particularly wind direction. As noted in the court's November 16 memorandum opinion, the Fourth Circuit in Hinkle stated that, "the requirement of similarity is moderated by the simple fact that the `actual events' are often the issue disputed by the parties." 81 F.3d at 425. However, according to the defendants, the "burn test" is intended to replicate the accident as the plaintiff claims its occurred, not as the defendants' argue it happened. Thus, the results of the "burn test" are only probative to the extent they duplicate the accident conditions as the plaintiff describes them. Therefore, because a video reenactment by its very nature creates the risk of jury prejudice, if the video lacks significant probative value, it should be excluded under Fed.R.Evid. 403. Nevertheless, as stated in the court's November16 memorandum opinion, Ford's failure to include in its experiment significant conditions not in dispute is by itself a sufficient basis for the exclusion of the "burn test." (Mem. Op. at 4.)

III.

While this court recognizes that the substantial similarity standard does not require perfect identity, the defendants' "burn test" deviates from the event it is intended to portray to such an extent that its probative value is outweighed by the significant risk of jury prejudice and confusion that may result if such video is presented at trial. Taken together, the failure of the defendants' "burn test" to account for (1) the asphalt pavement surface at the accident scene, (2) the dynamic nature of the accident, and (3) the subject vehicle's extended operation prior to the accident provides sufficient grounds for exclusion under the substantial similarity standard. Furthermore, because the "burn test" does not portray the accident conditions as the plaintiff's expert maintains they existed, the video as a test of the plaintiff's theory regarding the spread of the accident fire is of little probative value. Thus, the defendants' motion for reconsideration is DENIED.

An appropriate Order shall this day issue.

ORDER

After careful review of the record in this case and for the reasons stated in the accompanying Memorandum Opinion, it is this day

ADJUDGED, ORDERED AND DECREED

as follows:

1. The defendants' request for oral argument regarding their November 26, 2001 "Motion to Reconsider the Court's November 16, 2001 Order In Limine Concerning `Full-Scale Burn Test'" shall be, and it hereby is, DENIED;

2. The defendants' November 26, 2001 "Motion to Reconsider the Court's November 16, 2001 Order In Limine Concerning `Full-Scale Burn Test'" shall be, and it hereby is, DENIED.

The Clerk of the Court hereby is directed to send a certified copy of this Order and the accompanying Memorandum Opinion to all counsel of record.