Response to Defendants’ Motion In Limine

Summary: This brief is a response to the defendants’ motion in limine in a trucking case where the truck driver’s negligence caused a fatal crash in which 7 people, including 2 young children, were killed.  The defendants’ motions in limine sought to exclude the following evidence:  (1) newscasts about the crash; (2) photographs of the charred bodies of the victims killed in the fiery crash; (3) evidence from the victim’s autopsies; (4) the testimony of the plaintiff’s grief expert; and (5) opinion testimony from the officers who responded to the scene and investigated the accident.  Plaintiffs’ responses to the motions in limine explained the reasons why the evidence the defendants’ were seeking to exclude was proper and should be admissible at trial.

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
ERIKA TORRES, IVAN ALEJANDRO
TORRES, MARGARITA IBARRA
GUTIERREZ, IGNACIO MANUEL
CARRANZA, MARGARITA COTA
HERNANDEZ, ALMA IRENE DANIEL,
RAMON GARCIA MACIAS, AND
MARIA TERESA GUTIERREZ DE
GARCIA, OSCAR CARRANZA,
DOLORES COTA DE CARRANZA,
SERGIO CARRANZA DANIEL and
IVAN CARRANZA DANIELPlaintiffs,

vs.

ANNETT HOLDINGS, INC., d/b/a TMC
TRANSPORTATION, AND LARRY
HOOPINGARNER, JANE DOE
HOOPINGARNER, HUSBAND AND
WIFE,

Defendants.

No. C20062453

Torres Plaintiffs’ Response to Defendant’ Motion in Limine No. 2 Regarding Television Newscasts

(Tort Motor Vehicle – Wrongful Death)

(Assigned to the Honorable Paul Tang)

TORRES PLAINTIFFS’ RESPONSE TO
DEFENDANTS’ MOTION IN LIMINE NO.
2 REGARDING TELEVISION NEWSCASTS

Plaintiffs Erika Torres, Ivan Alejandro Torres, Margarita Ibarra Gutierrez, Ignacio Manuel Carranza, Margarita Cota Hernandez, Alma Irene Daniel, Ramon Garcia Macias, Maria Teresa Gutierrez de Garcia, Oscar Carranza, Dolores Cota de Carranza, Sergio Carranza Daniel and Ivan Carranza Daniel (hereinafter collectively referred to as the “Torres Plaintiffs”) hereby file their Response to Defendants Annett Holdings, Inc. d/b/a TMC Transportation and Larry Hoopingarner’s (collectively, “Defendants”) Motion in Limine No. 2 Regarding Television Newscasts (“Motion”). In support thereof, the Torres Plaintiffs respectfully state as follows:

I. PRELIMINARY STATEMENT

Defendants filed a Motion in Limine asking the Court to exclude the Fox 4 Newscast regarding the collision issue in this suit because: (i) the newscast is hearsay and (ii) the probative value of the newscast would allegedly be substantially outweighed by unfair prejudice. For the reasons discussed below, Defendants’ Motion should be denied.

First, the newscast is not hearsay because it is offered for its effect on the Torres Plaintiffs, not for the truth of the matter asserted. Rule 801 defines hearsay as “a statement, other than one being offered by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Since the Torres Plaintiffs are offering the newscast for its effect on the listeners (i.e., the Torres Plaintiffs), the hearsay rule does not preclude the admission of the newscast.

Second, the newscast should not be excluded because the probative value of the photographs is not substantially outweighed by the unfair prejudice, if any, to Defendants. The newscast is relevant to the Torres Plaintiffs’ emotional distress resulting from reports of the Decedents’ deaths. If the Court believes that Defendants will be prejudiced by the photographs, the Court can deal with any such prejudice with a limiting instruction.

II. ARGUMENT AND AUTHORITIES

A. The Newscast Is Not Hearsay Because it Is Offered for its Effect on the Torres Plaintiffs, Not for the Truth of the Matter Asserted.

Defendants contend that newscast constitutes inadmissible hearsay. (Mot. at 3-5.) Under Rule 802, hearsay is not admissible unless an exception to the hearsay rule applies. Ariz. R. Evid. 803. B But, under Rule 801, the hearsay rule is limited to “a statement, other than one being offered by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ariz. R. Evid. 803. Therefore, out-of-court statements offered to show the effect of the statement on the listener are not excluded by the hearsay rule. Crackel v. Allstate Ins. Co., 92 P.3d 882, 899 (Ariz. Ct. App. 2004) (out-of-court statements offered for their effect on listener are not within the proscription of Ariz. R. Evid. 802).

In this case, the newscast is offered for its effect on the Torres Plaintiffs—not for the truth of the matter asserted. Although the newscast may not be admissible for the truth of the matter asserted, the newscast is admissible for its effect to show the Torres Plaintiffs’ mental anguish and emotional distress resulting from reports of Decedents’ deaths. Therefore, the newscast does not constitute hearsay. Crackel, 92 P.2d at 899 (contents of court order were properly admitted because it was offered to show its effect on Allstate, not for the truth of the matter asserted); see also Martin v. City of Indianapolis, 192 F.3d 608, 613 (7th Cir. 1999) (newspaper article was properly admitted because it was not offered for the truth of the matter asserted) O’Sullivan v. City of Chicago, No. 01 C 9856, 2007 U.S. Dist. LEXIS 14468, at *40 (N.D. Ill. March 1, 2007) (newspaper article was properly admitted to on the issue of notice).

B. The Probative Value of the Newscast Would Not Be Substantially Outweighed by the Danger of Unfair Prejudice.

Defendants contend that the newscast should be excluded because the newscast would be unfairly prejudicial because the newscast would allegedly “predispose the jurors to the perspective of the newscasters” instead of requiring jurors to decide the case on the evidence presented at trial. (Mot. at 4-5.) Under 403, relevant evidence should not be excluded unless probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Ariz. R. Evid. 403. In balancing the probative value of the evidence against potential unfair prejudice, trial courts should consider a limiting instruction as a less restrictive alternative to excluding the evidence. Girouard, 158 P.3d at 262.

Here, the newscast should not be excluded because the probative value of the newscast is not substantially outweighed by the unfair prejudice, if any, to Defendants. The newscast is relevant to show the Torres Plaintiffs’ mental anguish and emotional distress resulting from reports of Decedents’ deaths. Therefore, the Court should not exclude the newscast based on Defendants’ unsupported speculation that the jury might give undue weight to the newscast. Not surprisingly, the same argument was rejected in a similar case involving the admissibility of a newspaper article. See O’Sullivan v. City of Chicago, 2007 U.S. Dist. LEXIS 14468, at *40-45. In that case, the court held that a newspaper article was properly admitted on the issue of notice.

In addition, the court rejected the defendant’s argument that the admission of the newspaper article was unfairly prejudicial because of the possibility that the jury ignored the court’s limiting instruction and gave undue weight to the article:

[T]here are a number of public surveys that indicate precisely the opposite of the City’s ipse dixit that the public uncritically credits what is reported. The skepticism is anything but new. A number of years ago, Judge Will sagely observed that “all Americans grow up with a kind of slowly developing, built-in, press-wise compensator.

What the cautionary instruction [given in the case] told the jury it must not do was not a feat beyond the compass of ordinary minds. Indeed, in cases calling for infinitely greater discernment than required here, courts have recognized the efficacy of limiting instructions in the context of evidence claimed to violate the hearsay rule.

* * *

Even if the jury credited the article in the form the plaintiffs submitted it, the article did no more than report the existence of events about which there was no dispute and which were part of the evidence in the case. The article did not take a position on the merit’s of the plaintiffs’ grievance or Commander Perry’s denials (which were included in the article). Thus, the article was not in the least prejudicial, let alone unfairly prejudicial, and the City’s unexplained conclusion to the contrary is insufficient.

Id. at *43-45. Here, as in O’Sullivan, this Court should reject Defendants’ unsupported assertion that the jury is incapable of considering the newscast for its effect on the Torres Plaintiffs who saw the newscast—the limited purpose for which it is offered. When the newscast is introduced, the Court can give an appropriate limiting instruction. See Girouard, 158 P.3d at 262 (trial courts should consider a limiting instruction as a less restrictive alternative to excluding the evidence ).

III. CONCLUSION

For the foregoing reasons, Defendants’ Motion should be denied.

DATED this _____ day of November 2007.

HEYGOOD, ORR, & PEARSON 

BY: ______________________________________

Michael E. Heygood

Texas State Bar No. 00784267

James Craig Orr, Jr.

Texas State Bar No. 15313550

2331 W. Northwest Highway, 2nd Floor

Dallas, Texas 75220

Phone: 1-877-446-9001

Fax: 214-237-9002