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Michael A. Worel (12741)
Colin King (1814)
Ricky Shelton (14784)
DEWSNUP KING OLSEN WOREL HAVAS MORTENSEN
36 S. State Street, Suite 2400
Salt Lake City, UT 84111
Telephone: (801) 533-0400
Attorneys for Plaintiff
THIRD JUDICIAL DISTRICT
SALT LAKE COUNTY, STATE OF UTAH
LOIS SMITH,
Plaintiff;
vs.
VOLKSWAGEN SOUTHTOWNE INC. et
al.
Defendants.
Opposition to Defendants’ Motions in Limine
Case No. 130908362
Judge: Barry Lawrence
Defendants have filed 8 motions in limine. These motions cover a lot of interrelated
issues. So, to be concise and efficient, Lois Smith is going to respond to all of them in this single
brief. Here is a table of contents:
Strict Liabilty……….….….…..page 2
Reptile Theory…….…..............page 3
Dr. Weaver……………..……...page 8
Engineer Leiss………....……....page 11
Brain Scans……….……..……page 12
Dr. Foley………………………page 19
Emission-Control Litigation…..page 27
Bifurcate Trial…………………page 27
Motion in Limine Standard
“When ruling on motions in limine, a court is forced to determine the admissibility of
evidence without the benefit of the context of trial.”1 Thus, “[e]vidence should be excluded on a
motion in limine only when the evidence is clearly inadmissible on all potential grounds.”2
References to Strict Liability
Defendants ask the Court to bar Lois’s counsel from referencing the legal terms “strict
liability” or “strictly liable” during trial. Defendants argue these terms are “irrelevant to the
factual issues before the jury” and “create a substantial risk of undue prejudice to Volkswagen.”
This is wrong.
First, the terms are obviously relevant. Strict liability is one of Lois’s causes of action.
Second, it is not prejudicial to Volkswagen if Lois’s counsel uses these terms. After all,
these are legal terms of art that Utah courts have chosen because of the important meaning they
convey. Just a few months ago in Bylsma v. R.C. Willey, the Utah Supreme Court emphasized
the importance of the word “strict” in understanding how strict liability is different than
negligence:
[T]he strict liability doctrine achieves its goals by relieving an injured plaintiff of
many of the onerous evidentiary burdens inherent in a negligence cause of action.
. . .Accordingly, in adopting section 402A of the Restatement, we deliberately
created a cause of action based in neither contract nor negligence, but rather strict
liability. Strict liability is, by definition, liability without fault or, in other words,
liability without blameworthiness in a moral sense. Culpable conduct is not at issue
in strict liability, only causation. . . . There is no room in a strict liability regime for
the consideration of culpability—indeed, to do so would not only destroy what
1 Singh v. Caribbean Airlines Ltd., No. 13-20639-CIV, 2014 WL 4101544, at *1 (S.D. Fla. Jan.
28, 2014).
2 Allen v. City of New York, 466 F. Supp. 2d 545, 547 (S.D.N.Y. 2006).
Page 3 of 30
makes strict liability “strict,” but also, in the context of products liability,
undermine the very purposes of the doctrine.3
The jury needs to understand “what makes strict liability ‘strict.’” The actual words matter.
Defendants say they’re concerned about the jury being confused. The way to avoid confusion is
to explain the law, not hide it. That’s why the Utah Model Jury Instructions have “strict
liability” as the title in bold for 13 different instructions.
In every trial, there is always a concern that opposing counsel will mischaracterize the
law. The way to handle that is to object when it happens and have the Court correct it.
Prohibiting Lois’s counsel from using the well-established legal terms of her claim would
infringe on her broad right to “considerable latitude” in how she presents her case to the jury.4
Reptile Theory
Ugh, another Reptile motion.5 Despite all the hype, Reptile theory is just a gimmicky
marketing ploy that uses quack pseudoscience6 to make long-standing concepts seem novel and
worthy of purchasing a $1,000 book.7 Once shed of its scaly skin, Reptile theory is nothing new.
It’s a mishmash of several concepts that the law already addresses. Some of these concepts are
appropriate for trial. Some are not.
3 Bylsma v. R.C. Willey, 2017 UT 85, ¶ 25 (emphasis provided).
4 State v. Wright, 2013 UT App 142, ¶ 39, 304 P.3d 887 (“Generally speaking, in argument to the
jury, counsel for each side has considerable latitude and may discuss fully from their viewpoints
the evidence and the inferences and deductions arising therefrom.”).
5 See Frank Carney’s blog: http://fjcadr.com/reptile-filings.html
6 See Ben Thomas, Revenge of the Lizard Brain, Scientific American, available at
http://blogs.scientificamerican.com/guest-blog/revenge-of-the-lizard-brain (explaining that the
Reptile theory is based on a debunked theory from the 1960s that is now being dressed “with
some smart-sounding jargon and parading around as if it’s scientific fact”).
7 https://www.amazon.com/gp/offer-
listing/0977442551/ref=tmm_pap_new_olp_sr?ie=UTF8&condition=new&qid=1526173597&sr
=8-1
Page 4 of 30
For example, the Restatement (Second) of the Law of Torts explains the longstanding
concept that negligence is “a departure from a standard of conduct demanded by the community
for the protection of others against unreasonable risk” and that “the standard which the
community demands must be an objective and external one, rather than that of the particular
individual.”8 This longstanding concept does not become untrue just because Reptile theory also
mentions it. The law is the law, regardless of Reptile theory.
Similarly, there is a longstanding prohibition against golden-rule arguments for
damages.9 This longstanding prohibition does not change just because aspects of Reptile theory
encourage such improper arguments. There’s no need for the Court to issue an order on this.
Lawyers are expected to know and follow the law.10
The problem with Reptile motions is they don’t distinguish the proper concepts from the
improper concepts.11 Purposefully conflating the two is a common defense tactic—use the
8 Restatement (Second) of Torts § 283 cmt. c (1965); see also Simpson v. Anderson, 517 P.2d
416, 418 (Colo. Ct. App. 1973) (“jurors collectively represent a cross-section of the conscience
of the community”); United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991) (“Unless
calculated to incite the passions and prejudices of the jurors, appeals to the jury to act as the
community conscience are not per se impermissible.”);Wicks v. Wal-Mart Stores, Inc., 199 F.3d
1324 (2d Cir. 1999) (rejecting argument that statement during closing argument about jury acting
as “conscience of the community” was improper); Freeman v. Blue Ridge Paper Prod., Inc., 229
S.W.3d 694, 712 (Tenn. Ct. App. 2007) (“An appeal to the jury to act as the community's
conscience is not necessarily improper argument.”).
9 Green v. Louder & Murray, 2001 UT 62, 29 P.3d 638.
10 Wells Fargo Bank, N.A. v. Siegel, No. 05 C 5635, 2007 WL 1118442, at *3 (N.D. Ill. Apr. 16,
2007) (“Such a vague and generalized request that Wells follow the Federal Rules of Civil
Procedure is not appropriate for a motion in limine. Wells is already bound by the Federal Rules
of Civil Procedure, as is Siegel, and there is no need for an in limine ruling affirming such a
fact.”).
11 Baxter v. Anderson, 277 F. Supp. 3d 860, 863 (M.D. La. 2017) (“The Court agrees with
Plaintiff that Defendants give the Court nothing objective to consider in deciding what [Reptile]
language, phrases or evidence the Court should deem improper. Defendants complain about
Page 5 of 30
ridiculous, improper aspects of Reptile theory to gut the proper aspects of negligence law. In
other words, bait the court into throwing the baby out with the bath water. This particular
Reptile Motion is an extremely insightful case in point. Volkswagen tries to use the ridiculous
aspects of Reptile theory to exclude the phrase “safety recall” from trial:
These tactics, which are commonly referred to as reptile strategy and are taught at
plaintiffs’ trial advocacy courses throughout the country, involve the use of
questions, statements, or argument that encourage the jury to make findings based
on emotional responses or concern for personal or community safety, rather than
facts or evidence. This includes use of the prejudicial term “safety recall” by
plaintiff, her counsel, or her witnesses.12
Did you see Volkswagen’s trick? They say Reptile theory encourages the jury to make findings
on things other “than facts or evidence” and that this includes “the prejudicial term ‘safety
recall’.” That’s absurd! This whole case is based a safety recall. It is both a fact and a piece of
evidence. Volkswagen’s own documents describe the leaky fuel lines as a “safety recall.”13
There is nothing prejudicial about calling a safety recall a “safety recall.” It’s just a damning fact
amorphous and ill-defined concepts rather than specific evidence which they believe Plaintiff
will introduce or arguments which they believe Plaintiff might make. The Court is being asked to
rule on abstract and generalized hypotheticals. In the absence of something more specific, the
Court is unable and unwilling to grant their motion.”); Botey v. Green, No. 3:12-CV-1520, 2017
WL 2485231, at *2 (M.D. Pa. June 8, 2017) (“Defendants request that the Court preclude
Plaintiff's counsel from attempting to present “Reptile Theory” evidence or argument at trial,
which is “based on the popular 2009 manual created for Plaintiff's attorneys across the nation.
Defendants' motion is premature. Without proper context and having heard the specific question
and/or testimony at issue, the Court is unable to determine whether that question and/or
testimony is objectionable.”); Bunch v. Pac. Cycle, Inc., No. 4:13-CV-0036-HLM, 2015 WL
11622952, at *2 (N.D. Ga. Apr. 27, 2015) (“To the extent that Defendant seeks to preclude
Plaintiffs from engaging in the “Reptile” tactics, this request is unnecessary and overly broad.”).
12 Motion at pg. 2.
13 See, e.g., Mandatory Stop-Sale Order and Upcoming Voluntary Safety Recall 23J9 (attached
as “Exhibit 1”).
Page 6 of 30
for Volkswagen that Volkswagen is trying to improperly exclude under the guise of Reptile
theory.
Here’s another trick by Volkswagen. It argues that the jury should not be able to
consider testimony about “protecting against needless endangerment” or “customer safety” or
“safety rules” or “community standards” because these concepts are irrelevant and prejudicial.14
That’s also absurd! These concepts are the very foundation of negligence and strict product
liability.
Look at how the Restatement defines negligence: “negligence is conduct which falls
below the standard established by law for the protection of others against unreasonable risk or
harm. . . . In so far as risk is of importance in determining the existence of negligence, it is a
chance of harm to others which the actor should recognize at the time of his action or
inaction.”15 “Negligence is conduct that creates or fails to avoid unreasonable risks of
foreseeable harm to others.”16 Protecting others against harm is not only the whole purpose of
negligence law; it’s also an integral part of determining whether someone has been negligent.
Community standards are another relevant factor in determining negligence, as Utah
courts have made clear: “The custom in the community would be evidence of negligence or lack
thereof, but the jury is not compelled to find that the custom measures up to the required standard
of care of the reasonable man.”17 The Restatement also makes this clear:
In determining whether conduct is negligent, the customs of the community, or of
others under like circumstances, are factors to be taken into account, but are not
14 Motion at pg. 15.
15 Restatement (Second) of Torts § 282 and cmt. g (1965) (emphasis provided).
16 Dobbs et al., The Law of Torts § 126 (2d ed.) (emphasis provided).
17 Singleton v. Alexander, 431 P.2d 126, 129–30 (Utah 1967).
Page 7 of 30
controlling where a reasonable man would not follow them. . . .Any such custom
of the community in general, or of other persons under like circumstances, is always
a factor to be taken into account in determining whether the actor has been
negligent. Evidence of the custom is admissible, and is relevant, as indicating a
composite judgment as to the risks of the situation and the precautions required to
meet them, as well as the feasibility of such precautions, the difficulty of any
change in accepted methods, the actor’s opportunity to learn what is called for, and
the justifiable expectation of others that he will do what is usual, as well as the
justifiable expectation of the actor that others will do the same.18
Other relevant factors in determining negligence include the following: violation of a safety
rule,19 magnitude of risk, foreseeability of harm, the number of persons who may be harmed, the
extent of that harm, alternative courses of conduct, 20 and prevention of future harm.21 Don’t let
Reptile mumbo jumbo corrupt the pillars of tort law.
As for comments about “sending a message about what type of conduct is acceptable,”
those aren’t typically permissible, but they are in this particular case because there is a claim for
punitive damages.22
18 Restatement (Second) of Torts § 295A and cmt. b (1965).
19 Allison v. McCarthy, 106 Utah 278, 147 P.2d 870, 872 (1944) (“[I]t was clearly a question for
the jury whether the safety rule of appellants had been violated by respondent and whether or not
he was guilty of contributory negligence because of such violation, if any. The following cases
are in harmony with the viewpoint that whether or not a violation of a safety rule constitutes
negligence as a matter of law or is a question for the jury depends upon the facts and
circumstances of each case.”).
20 Restatement (Second) of Torts §§ 288B, 293, 295 (1965).
21 W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 4, at 25 (5th ed. 1984) (“The
‘prophylactic’ factor of preventing future harm has been quite important in the field of torts. The
courts are concerned not only with compensation of the victim, but with admonition of the
wrongdoer. When the decisions of the courts become known, and defendants realize that they
may be held liable, there is of course a strong incentive to prevent the occurrence of the harm.
Not infrequently one reason for imposing liability is the deliberate purpose of providing that
incentive.”).
22 Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 967 (Utah Ct. App. 1989) (“Punitive damages
should represent more than a mere inconvenience to the defendant and should be sufficient
Page 8 of 30
Dr. Lindell Weaver
This is just a rehash of Defendants’ Motion for Summary Judgment on Causation. As we
explained in the Opposition to that Motion, Dr. Weaver’s opinions satisfy the “basic
foundational showing” of Utah Rule of Evidence 702.23 Dr. Weaver’s methodology of a
differential diagnosis satisfies the reliability criterion.24 Dr. Weaver’s opinions are based on
sufficient facts, including the following:
Dr. Weaver’s in-person evaluation of Lois in April 2014 that included a physical
examination, interview about her medical history, various written questionnaires
and assessments, as well as a neurological examination;
brain imaging by Dr. William Orrison;
a neuropsychological evaluation from Dr. Kimberly Sieber;
a psychiatric evaluation from Dr. Trent Holmberg;
a neurological evaluation and electroencephalogram by Dr. John Foley;
a speed evaluation from Speech-Language Pathologist Heather Elwell;
to send a message to both the defendant and others that such conduct will not be tolerated.”);
Nice v. ZHRI, Inc., 105 F. Supp. 2d 1028, 1029 (E.D. Ark. 2000), aff'd, 11 F. App'x 675 (8th Cir.
2001) (“It is clear that asking a jury to award additional punitive damages in order to ‘send a
message’ is error if punitive damages are not an issue. On the other hand, it is appropriate to ask
the jury to ‘send a message’ if counsel is not seeking an inappropriate punitive damage award.”).
23 Majors v. Owens, 2015 UT App 306, ¶ 12, 365 P.3d 165 (“[T]he threshold showing under rule
702(b) requires only a basic foundational showing of indicia of reliability for the testimony to be
admissible, not that the opinion is indisputably correct.”).
24 Alder v. Bayer Corp., AGFA Div., 2002 UT 115, ¶ 62, 61 P.3d 1068 (“In the instant case, the
district court summarily concluded that ‘Plaintiffs' evidence is not based upon inherently reliable
scientific or medical foundation as required under Rimmasch and Utah Rules of Evidence 702.’
To the contrary, however, differential diagnosis is one of the oldest and most widely used and
recognized of all the methods. Historically and even presently, in many instances, differential
diagnosis has been the only method available.”); Tingey v. Radionics, 193 F. App'x 747, 764
(10th Cir. 2006) (“[A] plaintiff may establish causation circumstantially through the use of
differential diagnosis.”).
Page 9 of 30
a cardiac-adenosine-stress MRI from Dr. Jeffrey Anderson;
a neuro-optometric evaluation from Dr. Robin Price;
an auditory and vestibular evaluation from Audiologist Rhoda Jenson;
Lois Smith’s medical records;
depositions and records of the following medical providers: Dr. Amy Calimlim, Dr.
Kevin Walker, Dr. Richard Sharp, and Dr. Brent Muhlestein;
the deposition of Lois Smith;
the First Amended Complaint (which describes the defective fuel lines); and
the Rule 35 examination and report of Dr. Sam Goldstein.
Dr. Weaver has testified as a causation expert in more than 200 carbon-monoxide cases.
Remember the case Major v. Owens discussed in the Opposition brief.25 In that case, the
Utah Court of Appeals ruled that a physician’s causation testimony satisfied Rule 702 because it
was based on the plaintiffs’ statements, “the temporal proximity between the collision and onset
of symptoms,” and “physical examinations and the imaging studies.”26 The Court of Appeals
rejected the defendants’ argument that the “treating physicians were required to conduct an
independent investigation to verify the [plaintiffs’] accounts of the collision and the onset of the
symptoms.”27 In fact, the physicians’ causation analyses did not even have to consider other
potential causes.28 “Certainly Defendants and the district court have identified weaknesses in the
treating physicians' expert opinions—the failure to consider other potential causes, for
example—but Defendants will have the opportunity to expose and probe such weaknesses once
25 2015 UT App 306.
26 Id. at ¶ 20.
27 Id.
28 Id. at ¶ 22.
Page 10 of 30
the opinions are admitted at trial.”29 Finally, the Court of Appeals issued this warning: “the Utah
Supreme Court has cautioned that district courts ‘must be careful not to displace the province of
the factfinder to weigh the evidence.’ . . . [T]he factfinder bears the ultimate responsibility for
evaluating the accuracy, reliability, and weight of the testimony.”30 Defendants’ arguments go to
the weight of Dr. Weaver’s testimony, not its admissibility.
Instead of addressing Major, which comes from the Utah Court of Appeals and was
discussed at length in the Opposition brief, Defendants cite to a case out of Oklahoma, Hall v.
Conoco Inc.31 That case is not applicable because it involved an injury (cancer) that didn’t
appear until 20 years after the alleged exposure.32 Thus the key element of “temporal proximity”
between the exposure and onset of symptoms was missing. Here, Lois’s onset of symptoms was
contemporaneous with the exposure. And she was diagnosed by an emergency doctor with
carbon-monoxide poisoning within a week of those symptoms. Ironically, Hall cuts against
Defendants because it explicitly states that “quantitative measurements” are “unnecessary” when
the exposure is “followed quickly by the onset of symptoms.”33
Another problem for the plaintiff in Hall was that none of the plaintiff’s experts was
“qualified to choose which concentration level to use” in estimating the amount of toxic
substance emitted by the refinery. Indeed, “[b]oth expert witnesses had seemingly disclaimed
any responsibility for picking this figure: Dr. Mitchell had regarded Dr. Gore as the expert and
29 Id. at ¶ 24.
30 Id. at ¶ 13 (quoting State v. Jones, 2015 UT 19, ¶ 26, 345 P.3d 1195).
31 886 F.3d 1308 (10th Cir. 2018).
32 Id. at 1308.
33 Id. at 1318.
Page 11 of 30
Dr. Gore had regarded Dr. Mitchell as the expert.”34 Here, in contrast, Dr. Weaver is qualified to
testify that levels as low as 200 parts per million of carbon monoxide would be sufficient to
cause Lois’s injuries, and Engineer Leiss is qualified to testify that the defective fuel line caused
levels of 300 parts per million of carbon monoxide or higher. Their opinions are
complementary, not circular.
Lastly, Defendants’ argue that Dr. Weaver isn’t qualified to opine “about the mechanical
operation of the vehicle.” We agree. That’s why Dr. Weaver has not offered any opinions about
that. Lois’s expert engineer, Peter Leiss, is testifying about that topic.
Engineer Peter Leiss
Again, this is just a rehash of Defendants’ Motion for Summary Judgment on Causation.
As we explained in the Opposition to that Motion, Leiss’s opinions satisfy the “basic
foundational showing” of Utah Rule of Evidence 702. Leiss is an expert in vehicle engineering
and accident reconstruction with 20+ years of education, training, and experience in that field.
The following are the most important facts and data that are the basis for this testimony:
laboratory testing of carbon monoxide, in which small amounts of diesel fuel
were placed on hot plates at engine-like temperatures to measure the amount of
carbon monoxide that was produced without combustion;
field testing of airflow from engine compartment to passenger compartment in
a Volkswagen Jetta similar to Lois’s;
the deposition of Dr. Lindell Weaver;
the deposition of Lois Smith;
the deposition of Guadalupe Mejia (the mechanic who fixed Lois’s car);
scientific articles produced with Lois’s Expert Disclosures that discuss the
intrusion of gases, including carbon monoxide, from a vehicle’s own engine
into the passenger compartment; and
34 Id. at 1313.
Page 12 of 30
Volkswagen’s documents about Recall 23J9 that explain the defective fuel
lines.
The laboratory and field testing that Leiss conducted are replicable and thus reliable.
Defendants argue that Leiss’s opinions are “[w]ithout any supporting data or
measurements whatsoever.” That is wrong. In his laboratory testing, Leiss measured the amount
of carbon monoxide that is produced when diesel fuel comes in contact with a surface at engine-
like temperatures. Specifically, Leiss’s tests showed that when 2 milliliters of diesel fuel land on
a surface of 350 degrees Fahrenheit, 295 parts per million of carbon monoxide is produced.
Leiss also testified based on his 20+ years as an automotive engineer that multiple parts of an
engine reach temperatures of at least 350 degrees while the car is operating.
As Leiss testified, there is plenty of evidence that much more than 2 milliliters of diesel
fuel leaked onto the engine while Lois was driving. For example, the mechanic who repaired
Lois’s car testified that he saw an amount of leaked fuel pooled on the engine between a pint and
quart. (1 pint = 473.176 milliliters; 1 quart = 946.353 milliliters). Volkswagen’s own recall
documents estimate that the defective fuel lines could leak and “estimated 1/3 to ½ cup of fuel
leaking per minute.” And Volkswagen’s own engineering experts estimates the maximum fuel
leak rate as 125 milliliters per minute.
Defendants believe there are weaknesses to Leiss’s testimony. But, again, that goes to
the weight of his testimony not its admissibility. Defendants will be able to attack those
weaknesses during cross-examination.
Brain Scans
Neurologist John Foley (non-retained expert in this case) has testified as an expert in
more than 100 carbon-monoxide cases. Carbon-Monoxide Specialist Lindell Weaver (retained
expert for Lois) has testified as an expert in more than 200 carbon-monoxide cases. In doing so,
Page 13 of 30
both Dr. Foley and Dr. Weaver have routinely relied on brain-imaging reports from
Neuroradiologist William Orrison at Nevada Imaging Centers. According to Dr. Foley, Dr.
Orrison is “the world’s expert in neuroradiology of carbon monoxide intoxication.”35 The brain-
imaging reports by Dr. Orrison describe anatomical features in the patient’s brain: sometimes
normal, sometimes abnormal. The brain-imaging reports are one of the many factors Dr. Foley
and Dr. Weaver rely upon in formulating their opinions about whether someone has been
poisoned by carbon monoxide.
Dr. Foley and Dr. Weaver followed that same routine practice in this case. In November
2013, Lois Smith underwent brain imaging through Dr. Orrison. Dr. Orrison wrote two reports
describing abnormal anatomical features in Lois’s brain, like “hippocampal atrophy,” “abnormal
signal intensity involving the globus palladi,” and “decrease in corpus callosum fiber tracks.”
Dr. Foley testified that “this triad of findings is almost pathognomonic of carbon-monoxide
intoxication. It’s very unusual to see this combination in this age of woman.”36
(“Pathognomonic” means a symptom is so characteristic of a disease that the symptom itself can
be used to make a diagnosis.) Dr. Foley ultimately concluded that “there’s an extremely high
probability that [Lois] suffered carbon-monoxide injury” based on his two neurological
evaluations of Lois as well as the brain-imaging reports from Dr. Orrison.37
The testimony of Dr. Foley (a non-retained expert) on this point dovetails with the
testimony of Dr. Weaver (a retained expert). Dr. Weaver testified that “it's my opinion that Lois
Smith inhaled products of combustion while driving from Utah to ultimately Washington, and
35 Dr. Foley Depo. at 22:1423:4 (attached as “Exhibit 2”).
36 Id. at 28:1231:5 (Ex. 2).
37 Id. at 44:2046:6 (Ex. 2).
Page 14 of 30
those products of combustion would have included hydrocarbons and carbon monoxide” and
“that she has brain damage as a consequence of this poisoning.”38 Dr. Weaver based his opinion
on many different pieces of information, including Dr. Orrison’s reports.39 Dr. Weaver further
explained that Dr. Orrison’s reports describe anatomy in the brain, but it is Dr. Weaver who uses
that information to make the diagnosis of carbon-monoxide poisoning.40
Obviously, Dr. Orrison’s reports are an important basis to Dr. Foley and Dr. Weaver’s
opinions, which are damning for Volkswagen. So it comes as no surprise that Volkswagen is
conjuring up whatever argument it can to get the reports excluded from trial. Here are the three
arguments Volkswagen comes up with: (1) “Dr. Orrison’s report and findings are inadmissible
hearsay”; (2) Lois failed “to produce complete copies of brain imaging studies [and that]
deprived Volkswagen of a full and fair opportunity to assess the reliability of Dr. Orrison’s
findings”; and (3) “To the extent Ms. Smith intends to offer evidence of fMRI scans to support a
suggestion of cognitive impairment,” the evidence is inadmissible under Rule 403 because “the
probative value of fMRI scans is substantially outweighed by unfair prejudice.” Each of these
arguments fails.
First, Dr. Orrison’s reports are not inadmissible hearsay. Just like the other medical
records in this case, they are admissible under the business-records exception of Rule 803(6).41
38 Dr. Weaver Depo. at 35:1936:8.
39 Id. (emphasis added).
40 Id. at 57:658:5.
41 See United States v. Hall, 419 F.3d 980, 987 (9th Cir. 2005) (explaining that medical records
are a “classic” exception to hearsay under Rule 803(6)); see also Middleton v. Rivera, No. 05
CIV. 3145 SCR LMS, 2010 WL 4242852, at *8 (S.D.N.Y. Mar. 9, 2010), report and
recommendation adopted, No. 05 CIV. 3145 RO, 2010 WL 4258951 (S.D.N.Y. Oct. 27, 2010)
(“Under Rule 803(6) of the Federal Rules of Evidence, medical records are considered business
records and as such, are admissible into evidence, and not considered hearsay.”).
Page 15 of 30
That Defendants are even challenging this is baffling, especially given the Court’s Pre-Trial
Order, which states: “The Court expects the parties to stipulate to the admissibility of exhibits—
including medical records—to the extent possible.” The reports are obviously a “record of an
act, event, condition, opinion, or diagnosis.” They were made “near the time of the act by
someone with knowledge.” They were made and kept as part of a regular practice of the
organization.
Perhaps Volkswagen is refusing to follow the Court’s instructions about foundation of
medical records because it knows that it will be a big hassle for Lois to get this foundation
information since Dr. Orrison is now dead and his clinic has closed. If Volkswagen wants to
employ that kind of stratagem for trial, fine. It will cut both ways for the medical records that
Volkswagen intends to use. Regardless, it’s a pointless obstruction by Volkswagen because even
if Lois is unable to get enough business-record foundation for Dr. Orrison’s reports, they are still
admissible under Rule of Evidence 703.
Rule 703 states that an expert “may base an opinion on facts or data in the case that the
expert has been made aware of.” Those facts and data may be admitted, even if they are not
otherwise admissible, so long as “experts in the particular field would reasonable rely on those
kinds of fact or data in forming an opinion on the subject.” Dr. Foley confirmed in his
deposition that Dr. Orrison’s reports are reasonably relied on by carbon-monoxide medical
experts:
Q. Now, you’ve been asked a lot of questions today about the diagnostic
imaging reports from Dr. William Orrison, right?
A. That’s correct.
Q. Let me ask you this: Do experts in your field of carbon monoxide exposure
reasonably rely on these types of diagnostic imaging reports?
A. Of course.
Page 16 of 30
Q. And even though you didn’t personally observe the MRI images as part of
your practice and specialty, you rely on the findings or conclusions by Dr. Orrison;
isn’t that correct?
A. I do, yes.42
…
Q. Now, the next page is Nevada Imagining Centers. This is the report of the
MRI that was done down in Las Vegas by Dr. Orrison?
A. Correct.
Q. Did you order this MRI?
A. I did.
Q. Okay. And why did you do that?
A. Because people need MRIs after carbon monoxide exposure. . . . And, you
know, things like hippocampal atrophy, routine neuroradiologists are not very good
at, and it’s really important to look carefully at the basal ganglia in carbon
monoxide intoxication, and [Dr. Orrison] is just the best, so we routinely send
clinical and legal cases down to him, if possible.43
Dr. Weaver also confirms this:
Q. On the cases where you offer CO opinions, how many of those cases involve
an MRI interpreted by Dr. Orrison?
A. Most.44
Dr. Weaver even cited to medical literature that corroborates the reliability of MRI reports, like
Dr. Orrison’s, in diagnosing carbon monoxide:
Q. We talked a lot about the imaging that Dr. Orrison reviewed and interpreted.
What authoritative literature would you point us to regarding interpretation of these
MRIs for purposes of detecting CO poisoning?
A. Well, at the bottom of [Dr. Orrison’s] report, there’s four references. Now
this was authored in 2013. I think there’s several more references that likely would
42 Dr. Foley Depo. at 45:1946:6 (Ex. 2).
43 Id. at 22:1423:21 (emphasis added) (Ex. 2).
44 Dr. Weaver Depo. at 82:710.
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be available now. Furthermore , if you look at my CV, I have coauthored three or
four abstracts with Dr. Orrison and others in his group about brain imaging in CO
poisoning, so, of course, I would call your attention to those. Those are in the
abstract area of my CV.45
Given the testimony of Dr. Foley and Dr. Weaver, the reports by Dr. Orrison are admissible
under Rule 703.
Second, Volkswagen argues that Lois “deprived Volkswagen of a full and fair
opportunity to assess the reliability of Dr. Orrison’s findings” because “neither Ms. Smith nor
her experts have produced a complete set of the data or films underlying Dr. Orrison’s report.”
This is wrong. It’s the reports that Dr. Foley and Dr. Weaver relied upon, not the actual imaging
(after all, they are not neuroradiologists); and Lois produced the reports during fact discovery.
Defendants used the reports extensively while deposing Dr. Foley and Dr. Weaver. Lois and her
experts did not have the imaging, so they can’t be blamed for not producing it.
And let’s be clear—Volkswagen actually obtained the imaging itself during discovery
and it was produced in the case. Volkswagen even retained their own neuroradiologist (Dr. Jeff
Anderson) who reviewed the imaging and attacked parts of Dr. Orrison’s reports. Just look at
Volkswagen’s Expert Disclosures:
Dr. Anderson will testify concerning the proper interpretation to be given to the
neurological imaging of Ms. Smith’s brain that was conducted by Dr. Orrison in
Las Vegas (see MEDREC-000050-55 and 000392-393). Dr. Anderson will testify
that the scan is essentially normal except for a non-specific finding of an increased
signal in the globus pallidus that could arise from many different causes, and that
his review of plaintiff’s records does not support the conclusion that plaintiff suffers
from carbon monoxide exposure or poisoning.46
45 Dr. Weaver Depo. at 84:2485:18.
46 Volkswagen’s Expert Disclosures at pgs. 23 (attached at “Exhibit 3”).
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In its Motion, Volkswagen complains about not having “a complete set of films underlying Dr.
Orrison’s report.” But Volkswagen never explains what part of the imaging is supposedly
missing, why that missing part is important, or why Lois is to blame for it being missing.
From Dr. Anderson’s deposition, it appears the missing part was a JPEG image of the
spectroscopy contrast. Dr. Orrison’s reports are based off an MRI with contrast spectroscopy
and an MRI without such contrast. The spectroscopy allows for a grid-like graph that shows
metabolites in tissues, including levels of choline. However, Dr. Anderson testified that it isn’t
necessary for him to have the spectroscopy, that knowing the levels of choline wouldn’t change
his opinions at all, and that the spectroscopy isn’t relevant to effects from carbon monoxide:
A. I have the images of the brain MRI, but I don’t have the actual images of
the spectroscopy.
Q. Okay. Are those something that—
A. I don’t think it would—that it’s necessary that I see those.
Q. I understand that. I’m just—I’m just curious more than anything else. You
said this other stuff could be put on a CD. Can this spectroscopy be put on a CD?
A. You can put it on a JPEG image.
Q. So it is possible to give you the actual screen where you see the lines going
up and down?
A. Yes.
Q. You have not seen the screen with the lines going up and down?
A. No. . . . So I don’t know if the choline peak was elevated relative to the
creatine peak, but even if it was, I don’t think it’s responsible to say that that’s
consistent with the clinical history of carbon monoxide exposure. I’m not aware of
anything in the literature that shows that there is a specific effect of carbon
monoxide on MR spectroscopy.47
47 Dr. Anderson Depo. at 51:1153:7.
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Therefore, even Volkswagen’s own neuroradiologist doesn’t believe that Volkswagen “was
deprived of a full and fair opportunity to assess the reliability of Dr. Orrison’s findings.” As he
explained, the spectroscopy is superfluous to the MRI: “it’s almost beside the point what you see
on spectroscopy because it follows directly from the structural brain MRI that there might be
some kind of atypicality in that region.”48
If Volkswagen truly wanted Dr. Orrison’s spectroscopy of Lois or its own independent
spectroscopy of Lois, it could have gotten it. This case was filed back in 2013. There has been
an extraordinary amount of time for Volkswagen to conduct discovery. Dr. Orrison didn’t die
until October 2017 (a fact Volkswagen purposely leaves out of its Motion). Volkswagen had
plenty of time to ensure it had “a complete set of imaging” from Nevada Imaging Centers.
Volkswgaen had plenty of time to follow-up with Nevada Imaging Centers about why the JPEG
image of spectroscopy was not included on the CD it received. Volkswagen could have taken
Dr. Orrison’s deposition; indeed, counsel for Lois gave Defendants explicit permission during
fact discovery to contact Dr. Orrison directly for that purpose. And Volkswagen could have
obtained their own brain imaging and spectroscopy of Lois through their expert neuroradiologist
Dr. Anderson under Rule of Civil Procedure 35.
Third and finally, Volkswagen argues that “to the extent Ms. Smith intends to offer
evidence of fMRI scans to support a suggestion of cognitive impairment,” the evidence is
inadmissible under Rule 403 because “the probative value of fMRI scans is substantially
outweighed by unfair prejudice.” The only conclusion in Dr. Orrison’s report that is based on
the fMRI (as opposed to the MRI) is the following: “Decrease in motor activation. Clinical
48 Dr. Anderson Depo. at 58:25.
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correlation is suggested for the possibility of thumb/finger adduction or abduction weakness.”49
Dr. Foley and Dr. Weaver are not relying on that part of the report. So the issue of whether
fMRIs are inherently unreliable and inadmissible under Rule 403 is moot.
Dr. John Foley
Volkswagen argues that Dr. John Foley (neurologist) should be excluded from trial
because he was not properly disclosed as an expert witness. This is wrong. Allow us to explain
some necessary context.
Lois’s injury happened in December 2011. In July 2012, Lois hired the law firm of Feller
& Wendt to represent her. In October 2012, Feller & Wendt sent Lois to Dr. Foley for a
neurological evaluation. In his records for that visit, Dr. Foley wrote his impression of Lois:
“probable carbon monoxide intoxication with subsequent residual neurological dysfunction . . .
further neurological workup including MRI of the brain would be of significant utility in this
case.”50 Lois had her brain MRI from Dr. Orrison a year later in November 2013. In December
2013, Dr. Foley conducted another neurological evaluation of Lois, concluding in his records
“severe carbon monoxide poisoning” and “I have performed 2 forensic evaluations. . . . I do feel
that she is 100% disabled due to her carbon monoxide poisoning.”51
Feller & Wendt filed the Complaint in December 2013. Unfortunately, Feller & Wendt
never paid Dr. Foley for his work, despite Dr. Foley’s numerous follow-up requests for payment.
(The same thing happened to Dr. Weaver). Dr. Foley was left in the dark about the status of the
49 Dr. Anderson Depo. at 83:2023 (explaining that this part of Dr. Orrison’s report is from “an
fMRI test”), 65:1821 (“Q. The fMRI, [Dr. Orrison’s] conclusion of what it showed was what?
A. His conclusion was that it showed decrease in motor activation.”).
50 Dr. Foley Records, pg. 5 (attached as “Exhibit 4”).
51 Id. at pg. 3.
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case and his role in it. As the Court is well aware, there was not much activity in the case for
two years. Notwithstanding, Defendants obtained Dr. Foley’s records in February 2016 during
fact discovery.52
A couple months later in 2016, the law firm of Dewsnup, King, Olsen, Worel, Havas,
Mortensen (DKOW) took over as counsel for Lois. After DKOW entered the case, it persistently
reached out to Dr. Foley to inquire about his willingness to serve as a retained expert on behalf
of Lois. However, Dr. Foley never responded (which is understandable given what happened to
him). Besides the information in his records which Defendants had obtained and produced,
DKOW did not know anything about what Dr. Foley’s testimony about Lois might be. When the
deadline came for expert disclosures, DKOW named Dr. Foley as a non-retained expert and
provided Defendants with this testimony summary:
Dr. Foley is expected to testify about Lois Smith’s injuries from carbon monoxide.
Dr. Foley is board certified in neurology. His testimony will help the jury
understand Lois’s carbon monoxide injuries from a neurology point of view. He
attended to Lois Smith in person. His records have already been produced in this
case.
Defendants deposed Dr. Foley in September 2017.
In his deposition, Dr. Foley expressed plenty of frustration with Feller & Wendt.53
Notwithstanding, Dr. Foley made it clear that (1) he had specialized knowledge about carbon-
monoxide poisoning, that (2) he had enough information about Lois—including two separate
neurological evaluations he conducted on her—to opine on whether she had been poisoned by
52 Id. at pg. 1.
53 Dr. Foley Depo. at 17: 1417, 25:1823 (Ex. 2).
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carbon monoxide, and that (3) his expert opinions would help the jury determine whether Lois’s
injuries were from carbon monoxide (forgive the long block quote but it is really important):
Q. The word “expert” has been used in different contexts today and I just want
to make clear for the record the different ways that word can have meaning.
A. Sure.
Q. So in one sense “expert” can mean in your line of work where a law firm
hires you to review all the medical records in a case, and then based off all those
medical records and perhaps your own personal examination to render a broad
opinion on the entire case; is that correct?
A. That’s correct.
Q. And when you say you're not an expert in this case, what you mean by that
is that at this point in time you're not working for any law firm to render an opinion
in the case, correct?
A. Correct.
…
Q. Now, the word "expert" can have a different meaning and it's kind of a more
broad meaning outside the context of being hired. What I mean by that is the word
"expert" can simply mean someone who has specialized knowledge in a particular
field?
A. Of course.
Q. So here’s what I’m getting at: When you say you’re not an expert in this
case, you don’t mean to say that you don’t have specialized knowledge in the field
of carbon monoxide exposure?
A. No, I don’t mean to say that at all. In fact, I’ve testified in probably well
over, I don’t know, a hundred carbon monoxide cases and have a research interest
in CO.
Q. And how many years have you been doing this?
A. Well, to varying degrees probably the last 15 years or so.
Q. Let me also ask you this: Are you aware that Lois Smith alleges she was
exposed to carbon monoxide?
A. I am.
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Q. And are you aware that Lois Smith believes she was injured from that
exposure?
A. I am.
Q. Here’s something you’re probably not aware of: This case has been
scheduled for trial sometime next year. I think late summer. And if it gets to that
point, a jury, which is just eight random people off the street, are going to have to
decide whether or not Lois Smith has injuries from carbon monoxide. Does that
make sense to you?
A. Yes.
Q. Now, those eight random people are probably not going to have anywhere
near the specialized knowledge you have in carbon monoxide exposure. Does that
make sense to you?
A. I would think not, most certainly.
Q. Don't you think that even though you've only seen Lois twice and even
though you haven't reviewed all the medical records that she has, don't you think
that you have some knowledge that would help those eight people make their
determination of whether or not she's been injured from carbon monoxide?
A. Of course.
Q. Tell me more why you think that.
A. Well, I mean, I've evaluated neurologically, as I mentioned, large numbers
of patients with carbon monoxide intoxication, I've served as an expert witness in
multiple cases, and I think that I have the ability to put many of the pieces
neurologically and the paraclinical testing together to come to a conclusion about
severity of the injury, permanency of the injury, all the questions along those lines.
Q. So even though you haven't reviewed every single document in this entire
case, what you have done provides you enough information that you can give
helpful information to the jury; is that fair to say?
A. Yeah. Sure.
Q. So what type of helpful information could you give to the jury that would
assist them in determining whether or not Lois Smith was injured from carbon
monoxide?
A. Well, again, with what I have right now, which is essentially a self-
generated report by the patient on two occasions together with neurological
examination findings and the ancillary
Page 24 of 30
questionnaire evaluation we did in our office together with the MRI evaluation from
Dr. Orrison, we could provide a sort of hypothesis of injury. Again, this is an
extremely atypical situation where really I haven't seen all the data, which is not
optimal.
Q. Even though you haven't seen all the data, based on what you do have, isn't
it true that there is a reasonable probability that Lois Smith suffered injuries from
carbon monoxide?
A. I think there's an extremely high probability she suffered with carbon
monoxide injury.
Q. And walk me through everything you have that supports that that leads you
to that conclusion.
A. Well, again, you know, so her history and physical examination is consistent
with that conclusion, and I believe that the MRI findings are, as I mentioned earlier,
essentially pathognomonic for carbon monoxide intoxication, the questionnaires
that she answered are highly consistent with carbon monoxide exposure, and the
neurological examination findings are typical.
Q. Okay. We're going to spend a little bit of time on each of those.
[Discussion of MRI findings that support Dr. Foley’s opinion]
Q. You also conducted a neurological examination on Lois Smith, correct?
A. I did.
Q. How many of those examinations did you do?
A. Two.
…
Q. How would you explain to a jury what a neurological examination is?
A. Well, a neurological examination is a bedside examination carried out in
which a comprehensive assessment of the central and peripheral nervous system is
undertaken with review of cranial nerves, motor function, sensory function,
coordinative function, gait testing, and reflexes.
Q. How long does a typical neurological examination take when you conduct
it?
A. Fifteen minutes, 20 minutes.
Q. And what were your conclusions from your neurological examinations of
Lois Smith?
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A. Well, both exams were highly consistent [of CO poisoning], Romberg's test
was moderately positive and a sharpened Romberg was also positive. In the second
exam, I think, truncal ataxia was also seen in a sitting position.54
As Dr. Foley’s deposition testimony shows, he has specialized knowledge of carbon-monoxide
poisoning and his two neurological examinations of Lois will help the jury determine whether
Lois has been injured from carbon monoxide.
Defendants argue that the Court should exclude Dr. Foley (who is still a non-retained
expert) from trial because the summary of Dr. Foley’s testimony in Lois’s Expert Disclosures
was inadequate. That is wrong. The testimony summary provided all the information that Lois
had about Dr. Foley at that time. The testimony summary states Dr. Foley is a neurologist who
evaluated Lois in person and who will explain her “carbon monoxide injuries from a neurology
point of view.” The testimony summary also explains that Dr. Foley’s expected testimony will
include the information in his records which “have already been produced in this case.” That’s
enough information to satisfy Rule 26.
The Advisory Committee Notes to Rule 26 explain that there are situations where a
witness is not “within the control of the party who plans to call them at trial. These witnesses
may not be cooperative, and may not be willing to discuss opinions they have with counsel.
Where this is the case, disclosures will necessarily be more limited.” This is exactly what
happened with Dr. Foley.
Defendants cite to RJW Media Inc. v. Heath as support for their argument. But that case
cuts against them. RJW involved a construction dispute. In his expert disclosures, the defendant
lumped 10 non-retained experts together into a single testimony summary that read: “these
witnesses may be asked to provide specific architectural, design, construction, or general
54 Dr. Foley Depo. at 39:2149:24 (Ex. 2)
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building opinions regarding the Heath project as well as opinions and facts regarding the deck.”55
One of the 10 non-retained witnesses was a county planner named Lewis. Lewis was never
deposed. Then, just four days before trial, the defendant told the plaintiff that Lewis was going
testify on other topics, including that “under the Snyderville Basin Development Code and the
County’s interpretation thereof, the carriage house/garage is not a dwelling/accessory
dwelling/residential unit” and that “a dwelling requires cooking facilities and more particularly
the structure needs to be plumbed with a 220V outlet for a stove.” The plaintiff objected, but the
trial court allowed Lewis to testify.
Ultimately, the Utah Court of Appeals reversed, holding that the defendant’s original
testimony summary for Lewis did not satisfy Rule 26 (the last-minute supplement four days
before trial was disregarded for being untimely). The court explained that to be sufficient, a
disclosure must “fairly inform” the other parties of the witness’s role in the case; that way, the
other parties “can make better informed choices about the discovery they want to undertake or,
just as important, what discovery they want to forego.”56 The court cautioned, however, that
“non-retained experts may pose challenges for a sponsoring party.”57 Thus “scrutiny of non-
retained expert disclosures should not become a rigid critique of form.”58 After all, the whole
purpose of disclosure “is to give the other side basic information concerning the subjects about
which the witness is expected to testify at trial, so that the other side may determine the witness's
relative importance in the case, whether the witness should be interviewed or deposed,
55 RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 7, 392 P.3d 956.
56 Id. at ¶¶ 2425.
57 Id. at ¶ 27.
58 Id. at ¶ 24.
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and whether additional documents or information concerning the witness should be sought.”59
RJW and our case have several important differences. First, Lois provided a testimony
summary that was specific to Dr. Foley, as opposed to lumping his testimony summary together
with 9 other non-retained experts. Second, Lois’s disclosure obviously informed Defendants
about Dr. Foley’s importance in the case because Defendants took his deposition (in contrast to
RJW, which Lewis was never deposed). Third, all of Dr. Foley’s opinions about Lois were
already set forth in his records, which were produced during fact discovery and identified in
Lois’s testimony summary for Dr. Foley. Finally, Lois is not trying, on the eve of trial, to have
Dr. Foley testify about new topics. Dr. Foley’s trial testimony will cover the same topics
discussed during his deposition. Therefore, Volkswagen is wrong—Lois has not “prejudiced
Volkswagen by depriving the defendants of notice of the actual opinions which Dr. Foley may
offer.”
Emissions-Control Scandal
Lois agrees that the emissions scandal is not relevant to her claims, and she will not
present evidence of the scandal to support her claims.
Bifurcate Trial
SouthTowne asks the Court to bifurcate the trial for punitive damages. SouthTowne
argues this will “promote judicial economy and expediency, and prevent prejudice to
SouthTowne.” That is wrong.
As the Court is well aware, this litigation has already taken an extraordinary amount of
time. The Complaint was filed in 2013. Bifurcating this trial does the opposite of promoting
economy and expediency. If SouthTowne wanted two separate trials, it should have made that
59 Id. at ¶ 23.
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request last year at the pretrial conference when the parties were scheduling trial. Misnaming its
motion to bifurcate a “motion in limine” doesn’t make it any less untimely.
Efficiency and expediency aside, the Utah Supreme Court has explained that bifurcating
a trial is an abuse of the trial court’s discretion “if the issues are not clearly separable.”60 Take,
for example, the case Walker Drug Co. v. La Sal Oil Co.61 There, a landowner sued owners of a
gas station for trespass. The gas-station owners asked the trial court to bifurcate the issue of
damages into a separate trial. The trial court granted the motion. However, the Utah Supreme
Court reversed. It explained that “the amount of damages recoverable for trespass, because of
the nature of the tort, is integrally related to the extent of the defendant’s interference with both
the land and the plaintiff’s possessory interest.”62 “Because the issues of damages and liability
were not clearly separable in this case, the bifurcation of the trial inescapably resulted in jury
confusion that prejudiced plaintiffs and undermined the fairness of trial.”63
The same reasoning applies here. Punitive damages, by definition, are not clearly
separable from liability. In deciding the amount of punitive damages, the jury must consider
“the nature of the alleged misconduct” as well as the “the facts and circumstances surrounding
such conduct.”64 Consequently, the amount of punitive damages “is integrally related to the
defendant’s” tortious conduct and liability. Courts around the country have used this same
60 Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1244 (Utah 1998).
61 Id.
62 Id. at 1244.
63 Id. at 1245.
64 Diversified Holdings, L.C. v. Turner, 2002 UT 129, ¶ 12, 63 P.3d 686.
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reasoning to deny requests to bifurcate trial for punitive damages.65
DATED this 16th day of May, 2018.
DEWSNUP KING OLSEN WOREL HAVAS MORTENSEN
/s/ Ricky Shelton
Michael A. Worel
Colin King
Ricky Shelton
Attorneys for Plaintiff
65 See,e.g., Estate of Thompson v. Kawasaki Heavy Indus., Ltd., 933 F. Supp. 2d 1111,
1138 (N.D. Iowa 2013) (“[B]ifurcation of the interwoven issues of liability and punitive
damages would be inconvenient, confusing, and result in a loss rather than a gain in judicial
economy and economy to the parties, not to mention unnecessary delays for the jury.”);
Dahlin v. Lyondell Chem. Co., No. 314CV00085SMRHCA, 2016 WL 4690390, at *3 (S.D.
Iowa Mar. 24, 2016) (“The Court concludes bifurcation in this case would not serve judicial
economy, as the bulk of the challenged evidence relating to punitive damages would also
be relevant to Plaintiff's underlying claims. The Court further finds any potential unfair
prejudice may be cured by appropriate jury instructions.”); Zeigler v. Fisher-Price, Inc.,
No. C01-3089PAZ, 2003 WL 25686840, at *12 (N.D. Iowa July 1, 2003) (“Because
Zeigler's proof relating to punitive damages is virtually identical to the proof relating to the
other issues, it would be repetitive and unnecessarily time consuming to hold separate
proceedings on the punitive damages claim.”).
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Certificate of Service
I certify that a copy of the foregoing was electronically filed with the Court on May 16,
2018, which constitutes service on the following parties:
Rodney Parker
Taymour Semnani
SNOW CHRISTENSEN & MARTINEAU
Attorneys for Defendants VW AG, VW Group of America, Inc. and VW de Mexico, S.A. de C.V.
Heinz J. Mahler
Gary T. Wight
S. Shane Stroud
KIPP AND CHRISTIAN, P.C.
Attorneys for Defendant VW SouthTowne, Inc.
/s/ Ricky Shelton
