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.
3 Regarding Photographs of
Charred Bodies

(Tort Motor Vehicle –
Wrongful Death)

(Assigned to the Honorable Paul Tang)

TORRES PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION IN

LIMINE NO. 3 REGARDING PHOTOGRAPHS OF CHARRED BODIES

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. 3 Regarding Photographs of Charred Bodies (“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 photographs showing the charred bodies of the Torres Plaintiffs’ relatives that were killed in the collision (“Decedents”) at issue in this suit because: (i) the photographs are allegedly not relevant and (ii) the probative value of the photographs would be substantially outweighed by unfair prejudice. For the reasons discussed below, Defendants’ Motion should be denied.

First, the photographs at issue are relevant because the Torres Plaintiffs’ accident reconstruction expert relied on the photographs in forming his opinions and to show the Torres Plaintiffs’ emotional distress resulting from the manner of Decedents’ deaths. Under Rule 703, the photographs reviewed and relied on by Plaintiffs’ accident reconstruction expert (including the only photograph showing Defendants’ 18-wheeler on top of the Decedents’ truck) are admissible for the purpose of showing the bases for the expert’s opinions. The photographs are also admissible to show the mental anguish and emotional distress resulting from the manner of the Decedents’ deaths because the Torres Plaintiffs are aware of the photographs and some of the plaintiffs have seen such photographs.

Second, the photographs of the charred bodies should not be excluded because the probative value of the photographs is not substantially outweighed by the unfair prejudice, if any, to Defendants. The photographs are highly relevant to the Torres Plaintiffs’ emotional distress resulting from the manner of Decedents’ deaths and the opinions of the Torres Plaintiffs’ accident reconstruction expert. If the Court believes that Defendants will be prejudiced by the photographs, the Court can deal with any such prejudice with limiting instructions and by limiting the number of photographs.

II. ARGUMENT AND AUTHORITIES

A. The Photographs Are Relevant Because the Plaintiffs’ Accident Reconstruction Expert Relied on the Photographs in Forming His Opinions and to Show the Torres Plaintiffs’ Emotional Distress Resulting From Deaths of Their Relatives.

1. The Photographs Are Relevant and Admissible Because the Plaintiffs’ Accident Reconstruction Expert Relied on the Photographs in Forming His Opinions.

The Torres Plaintiffs’ accident reconstruction expert, William Greenlees, reviewed photographs of the accident scene showing the charred bodies of the Decedents in forming his expert opinions. These photographs include, inter alia, the only photograph showing Defendants’ 18-wheeler on top of the Decedents’ truck. Under Rule 703, the photographs reviewed and relied on by Plaintiffs’ accident reconstruction expert are admissible for the purpose of showing the bases for the expert’s opinion. Ariz. R. Evid. 703. Thus, an expert witness on direct examination may disclose facts or data that have not been admitted in evidence—and that may not be admissible—if they form a basis for his opinion and if of a type reasonably relied on by experts in the field. State v. Ludstrom, 776 P.2d 1067, 1071-72 (Ariz. Ct. App. 1989); Hernandez v. Faker, 671 P.2d 427, 431 (Ariz. Ct. App. 1983). Once disclosed, the facts or data are admissible for the purpose of showing the basis of the expert’s opinion. Ludstrom, 776 P.2d at 1071-72; Lynn v. Helitec Corp., 698 P.2d 1283, 1287 (Ariz. Ct. App. 1984); Ariz. R. Evid. 703 cmt. (reasonably relied on facts or data become admissible under this rule for the limited purpose of disclosing the basis for the opinion unless).

In this case, photographs of the accident scene are the type data that William Greenlees, as an accident reconstruction expert, reasonably relied on in forming his opinions. In particular, Mr. Greenlees relied on the only photograph showing Defendants’ 18-wheeler on top of the Decedents’ truck. This photograph shows, among other things, how far the 18-wheeler penetrated into the cab of the Decedents’ truck. Although the photograph shows the charred bodies of the Decedents, it is an important basis for Mr. Greenlees’s opinion and is, therefore, admissible on direct examination to show the basis for his opinion. Ludstrom, 776 P.2d at 1071-72; Lynn, 698 P.2d at 1287; Ariz. R. Evid. 703 cmt.

2. The Photographs Are Relevant and Admissible to Show the Torres Plaintiffs’ Emotional Distress Resulting From Deaths of Their Relatives.

Relying on Girouard v. Skyline Steel, Inc., 158 P.3d 255, 259 (Ariz. Ct. App. 2007), Defendants contend that photograph of the charred bodies of the Decedents are inadmissible because (i) evidence of the pre-death suffering is not relevant to the Torres Plaintiffs’ Claims and (ii) the Torres Plaintiffs have allegedly not seen the photographs. For the reasons, discussed below, the photographs are admissible to show the mental anguish and emotional distress resulting from the Decedents’ deaths.

First, although photographs of the charred bodies are not admissible to show Decedents’ pre-death pain and suffering, the photographs are admissible to show the Torres Plaintiffs’ mental anguish and emotional distress resulting from the Decedents’ manner of the Decedents’ deaths. Girouard, 158 P.3d at 259-60. In Girouard, the Arizona Court of Appeals held that the trial court erred by excluding evidence of the manner of his son’s death because such evidence was relevant to show the mental anguish and emotional distress resulting from the manner of his son’s death even though the defendant stipulated to liability. Id. at 258-62. Here, as in Girouard, the photographs are admissible to show the mental anguish and emotional distress resulting from the manner of Decedents’ deaths.

Second, photographs of the charred bodies are relevant and admissible because the Torres Plaintiffs are aware of the photographs and some of the Torres Plaintiffs have seen the photographs. In Girouard, the Arizona Court of Appeals noted that the trial court’s exclusion of certain evidence that the plaintiff was not aware of was not improper because it had little probative value. Id. at 261-62. In this case, the Torres Plaintiffs are aware of the photographs and some of them have seen the photographs. Therefore, such photographs are relevant to show the mental anguish and emotional distress resulting from the manner of Decedents’ deaths. See id. at 258-62. Moreover, unlike Girouard, Defendants have not stipulated to liability. See id. at 256 (the defendant stipulated to liability). Thus, in addition to being relevant to emotional distress, the circumstances surrounding the accident, including photographs of the accident scene, are also admissible to show liability and, as discussed above, as a basis for the opinions of the Torres Plaintiffs’ accident reconstruction expert.

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

Defendants contend that the photographs would be unfairly prejudicial because such photographs would allegedly (i) elicit shock, horror, and sympathy among the jurors and (ii) create a risk that the jury would consider the pain and suffering of the Decedents. (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. For the reasons discussed below, the photographs should not be excluded under Rule 403.

First, the photographs should not be excluded because the probative value of the photographs is not substantially outweighed by the unfair prejudice, if any, to Defendants. The Arizona Supreme Court has repeatedly held that relevant photograph should not be excluded under Rule 403 simply because the photographs are graphic or gruesome. State v. Anderson, 111 P.3d 369, 381-82 (Ariz. 2005) (the probative value of gruesome crime-scene photographs, including a photograph of a disfigured head with a knife inserted through the ear, was not substantially outweighed by the danger of unfair prejudice); State v. Castaneda, 724 P.2d 1, 10-11 (Ariz. 1986) (same). As discussed above, photographs of the charred bodies are highly relevant to the Torres Plaintiffs’ emotional distress resulting from the manner of Decedents’ death and the opinions of the Torres Plaintiffs’ accident reconstruction expert. Therefore, the probative value of the photographs is not substantially outweighed by unfair prejudice. If the Court believes that Defendants will be prejudiced by the photographs, the Court can deal with any such prejudice with limiting instructions and by limiting the number of photographs. See Girouard, 158 P.3d at 262 (a limiting instruction is a less restrictive alternative to excluding evidence under Rule 403); Anderson, 111 P.3d at 381-82 (noting that, on remand, the trial court complied with Rule 403 by limiting the number of graphic crime-scene photographs).

Second, the Court should not exclude the photographs based on Defendants’ speculation that the jury might base its award on the pre-death suffering of the Decedents. When the photographs are introduced, the Court can give appropriate limiting instructions. See Girouard, 158 P.3d at 262. For example, during the examination of the Torres Plaintiffs’ accident reconstruction expert, the Court can instruct the jury to consider the photographs in its evaluation of the bases for the expert’s opinions. Likewise, during the testimony of plaintiffs who have seen the photographs, the Court can instruct the jury that it should consider the photographs in its evaluation of the Torres Plaintiffs’ mental anguish and emotional distress resulting from the manner of Decedents’ deaths.

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