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 Defendants’ Motion in Limine No. 8 Regarding Opinion Testimony on the Issues of Fault, Negligence and/or Wrongdoing

(Tort Motor Vehicle –
Wrongful Death)

(Assigned to the Honorable Paul Tang)

Torres Plaintiffs’ Response to Defendants’ Motion in Limine
No. 8 Regarding Opinion Testimony on the
Issues of Fault, Negligence and/or Wrongdoing
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. 8 Regarding Opinion Testimony on the Issues of Fault, Negligence and/or Wrongdoing (“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 opinion testimony regarding fault, negligence, and/or wrongdoing from the following witnesses: Cyndi Lewicki; Officer Neil Williamson; Officer James Oien; and William Greenlees. For the reasons discussed below, Defendants’ Motion should be denied.

First, Officers Oien and Williamson clearly qualify as experts based on their training and experience. Therefore, under Rule 704, Officers Oien and Williamson may offer their opinions even if such opinions embrace ultimate issues.

Second, Rule 704 permits Mr. Greenlees, a qualified accident reconstruction expert, to offer opinions on ultimate issues.

Third, under Rule 701, Cyndi Lewicki—the only eyewitness to the accident—may offer her opinion that Larry Hoopingarner caused the accident because her opinion (that Mr. Hoopingarner caused the collision by rear-ending the Decedents’ truck at a high rate of speed and not applying his brakes) is rationally based on her perception of the event. Under Rule 704, an opinion from a lay expert such as Ms. Lewicki is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact.

II. ARGUMENT AND AUTHORITIES

A. Under Rule 704, Officers Williamson and Oien May Offer Opinions on Ultimate Issues.

Defendants argue that Officers Williamson and Oien should not be permitted to offer opinions regarding fault, negligence, or wrongdoing because such opinions would allegedly invade the province of the jury. Under Rule 702, a police officer with experience in accident investigation may qualify as an expert based on that experience and be permitted to offer expert opinions at trial. Bliss v. Treece, 658 P.2d 169, 171-72 (Ariz. 1983) (police officer qualified as an expert based on his experience in accident investigations); State v. Gentry, 598 P.2d 113, 115-16 (Ariz. Ct. App. 1979) (same). Under Rule 704, testimony from properly qualified officers is not inadmissible simply because it embraces an ultimate issue to be decided by the trier of fact. See Bliss, 658 P.2d at 171 (although the issue of whether the plaintiff was following too close to the defendant was a jury issue, the trial court properly admitted the officer’s opinion on that issue); Gentry, 598 P.2d at 115 (even though the issue of whether the defendant was the driver in an alcohol-related vehicular manslaughter case was a jury issue, the trial court properly allowed the officer to opine that the defendant was the driver); see also Austin v. City of Scottsdale, 684 P.2d 151, 154 (Ariz. 1984) (in a wrongful death case, trial court should have allowed former police officer to testify that the police department’s conduct was negligent and failed to meet the relevant standard of care). For the reasons discussed below, Officers Williamson and Oien qualify as experts and, therefore, should be permitted to offer their opinions at trial.

In this case, Officers Oien and Williamson clearly qualify as experts based on their training and experience. See Bliss, 658 P.2d at 171-72 (police officer qualified as an expert based on his experience in accident investigations); Gentry, 598 P.2d at 115-16 (same). Officer Oien is a certified accident reconstructionist who is often asked to investigate and determine the cause of motor vehicle accidents. (Oien Dep. at 89:1-96:12, 96:15, 96:17.) Similarly, Officer Williamson has four years of experience investigating accidents (including fatal accidents) and has had collision investigation training at the law enforcement academy. (Williamson Dep. at 60:9-67:9.) Not surprisingly, Defendants do not challenge the officers’ qualifications. Moreover, since Officers Oien and Williamson qualify as experts, Steed v. Cuevas (the case Defendants rely on for the exclusion of opinions and conclusions in the report) does not require exclusion of the report’s opinions and conclusions. 540 P.2d, 166, 172 (Ariz. 1975) (it was error to admit entire police report because it contained opinions of unqualified experts).

Under Rule 704, qualified experts such as Officers Oien and Williamson may offer their opinions even if such opinions embrace ultimate issues. See Bliss, 658 P.2d at 171 (trial court properly admitted the officer’s opinion on ultimate issue); Gentry, 598 P.2d at 115 (same); see also Austin, 684 P.2d 151, 154 (Ariz. 1984) (in a wrongful death case, trial court should have allowed former police officer to testify that the police department’s conduct was negligent and failed to meet the relevant standard of care). Unlike in Webb v. Omniblock, Inc., 166 P.3d 140, 145-46 (Ariz. Ct. App. 2007), the case relied on by Defendants, Officers Oien and Williamson’s opinions are not intended to tell the jury to decide the case. Officer Oien’s conclusion that Larry Hoopingarner caused the accident is a far cry from Webb, a case in which the expert essentially told the jury how to fill out the verdict form by telling the jury what percentage of liability (i.e., 35%, 25%, 10%, and 30%) to assign to each party. See id. at 145.

B. Under Rule 704, Plaintiffs’ Accident Reconstruction Expert, William Greenlees, May Offer Opinions on Ultimate Issues.

Second, Defendants contend that the Torres Plaintiffs’ accident reconstruction expert, William Greenlees, should not be permitted to offer opinions on the issues of fault, negligence, wrongdoing, or to testify that Larry Hoopingarner’s conduct was the sole cause of the collision because such opinions would allegedly invade the province of the jury. (Mot. at 7.) As discussed above, Rule 704 permits expert to offer opinions that embrace ultimate issues. See, e.g., Austin, 684 P.2d 151, 154 (Ariz. 1984) (in a wrongful death case, trial court should have allowed former police officer to testify that the police department’s conduct was negligent and failed to meet the relevant standard of care); State v. Poehnelt, 150 Ariz. 136, 150 (Ariz. Ct. App. 1985) (expert permitted to testify on issue of battered child syndrome even though it bore on an ultimate issue). Moreover, under Rule 703, Mr. Greenlees may base his opinions on facts or data that may not be admissible at trial as long as accident reconstruction experts reasonably rely on such data. Ariz. R. Evid. 703.

Here, Defendants do not challenge Mr. Greenlees’s qualifications nor do they argue that the facts or data Mr. Greenlees relied on are not the type of facts or data reasonably relied on by experts in the field of accident reconstruction. Therefore, as a qualified expert, Mr. Greenlees may offer opinions on ultimate issues. See Ariz. R. Evid. 704. Moreover, contrary to Defendants’ unsupported assertion, Mr. Greenlees’s testimony is not intended to tell the jury how to decide the case. Instead, the purpose of Mr. Greenlees’s expert testimony is to help the jury determine how the collision occurred. Such testimony is obviously proper under Rules 702 and 704.

C. Ms. Lewicki May Offer Opinions and Inferences That Are Rationally Based on Her Perception of the Collision.

Defendants argue that, as a lay witness, Ms. Lewicki should not be permitted to offer opinions regarding fault, negligence, reasonableness, and wrongdoing. (Mot. at 3.) Under Rule 701, a lay witness may offer opinions or inferences which are (i) rationally based on the perception of the witness and (ii) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. Ariz. R. Evid. 701. Under Rule 704, testimony in the form of an opinion or inference is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. Ariz. R. Evid. 704. Nothing in Rule 704 suggests that lay witnesses are not permitted to offer opinions that touch on ultimate issues.

As the only eyewitness to the accident, Ms. Lewicki’s opinion that Larry Hoopingarner caused the accident and was, therefore, at fault (because Mr. Hoopingarner rear-ended the Decedents’ truck at a high rate of speed and did not apply his brakes) is rationally based on her perception of the event. Therefore, her opinion is rationally based on her perception of the collision and would assist the jury in determining in resolving the issues of negligence and causation.

III. CONCLUSION

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

DATED this 14th 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