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PCNA’S MOTION IN LIMINE NO. 5—RACING EXPERIENCE & DRIVING ABILITY
STEPHEN T. WAIMEY (SBN 87262) [email protected] YVONNE DALTON (SBN 216515) [email protected] ANIKA S. PADHIAR (SBN 272632) [email protected] LEE, HONG, DEGERMAN, KANG & WAIMEY 3501 Jamboree Road, Suite 6000 Newport Beach, CA 92660 Telephone: 949.250.9954 Facsimile: 949.250.9957 CHRISTOPHER C. SPENCER (pro hac vice)[email protected] MARK C. SHUFORD (pro hac vice) [email protected] ADAM L. LOUNSBURY (pro hac vice) [email protected] SPENCER SHUFORD LLP 6806 Paragon Place, Suite 200 Richmond, VA 23230 Telephone: 804.285.5200 Facsimile: 804.285.5210 Attorneys for Defendant PORSCHE CARS NORTH AMERICA, INC.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA—WESTERN DIVISION
KRISTINE M. RODAS, individually, and as successor-in-interest, and on behalf of the Estate of Roger W. Rodas,
Plaintiff,
v.
PORSCHE CARS NORTH AMERICA, INC., a Delaware corporation; and DOES 1-20, inclusive,
Defendants.
CASE NO. 2:14-cv-03747-PSG-MRW
Hon. Philip S. Gutierrez PCNA’S MOTION IN LIMINE NO. 5—TO EXCLUDE EVIDENCE OF RODAS’S RACING EXPERIENCE AND DRIVING ABILITY Complaint filed: May 12, 2014 Trial date: May 3, 2016
Case 2:14-cv-03747-PSG-MRW Document 103 Filed 03/18/16 Page 1 of 4 Page ID #:2033
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2
PCNA’S MOTION IN LIMINE NO. 5—RACING EXPERIENCE & DRIVING ABILITY
PCNA, pursuant to Fed. R. Evid. 401-404 and Fed. R. Civ. P. 26 and 37,
moves the Court to exclude evidence of or references to Roger Rodas’s racing
experience and driving ability on the following grounds:
1. Plaintiff seeks to introduce into evidence testimony from Jeff
Westphal regarding Roger Rodas’s “skill and competency as a driver, as well as
his history of racecar driving.” Lounsbury Decl. ¶ 9(c). She also seeks to
introduce into evidence testimony from Dan Aspesi regarding Roger Rodas’s “skill
and competency as a driver, as well as his history of driving Porsche automobiles.”
Id. ¶ 9(d).
2. Plaintiff identifies both of these witnesses to discuss Rodas’s “skill
and competency as a driver.” She wants to prove, circumstantially, that Rodas was
a superior driver that would not have lost control of the Carrera GT unless
something failed in the vehicle. This is nonsense. The argument is not persuasive
for two reasons. First, the mere fact that Mr. Rodas had driven with some skill in
races does not mean that he always drove with skill on the street and was incapable
of losing control of a car. One does not need to be a NASCAR or Formula One fan
to know that expert drivers lose control and crash with great frequency. This is
exactly the kind of evidence Fed. R. Evid. 404 prohibits.
3. Furthermore, the plaintiff has already admitted that Mr. Rodas was
driving about 90 mph at the end of the curve in a 45 mph zone. (Dkt. 90, ¶ 54.)
She cannot on the one hand admit that he was driving at a reckless speed and then
suggest on the other hand that he would never do such a thing.
4. Mr. Rodas’s general driving ability is character evidence. Fed. R.
Evid. 404 prohibits the use of a person’s character or character trait to prove that
on a particular occasion the person acted in accordance with that character or trait.
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Case 2:14-cv-03747-PSG-MRW Document 103 Filed 03/18/16 Page 2 of 4 Page ID #:2034
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PCNA’S MOTION IN LIMINE NO. 5—RACING EXPERIENCE & DRIVING ABILITY
5. It is also unfairly prejudicial. Evidence is unfairly prejudicial if it has
“an undue tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.” In re Conagra Foods, Inc., 302 F.R.D. 537,
561 (C.D. Cal. 2014) (citing Fed. R. Evid. 403, Advisory Committee Notes).
6. Neither witness can shed any light on whether the toe rod was
defective, which is the only remaining theory on which plaintiff will proceed at
trial. The information they might offer is therefore, irrelevant and must be
excluded under Fed. R. Evid. 402.
7. Furthermore, Westphal and Aspesi should be excluded because they
were not disclosed as experts. In order to opine about Rodas’s “skill and
competency” as a driver, they must, naturally have some expertise to offer and
such evidence would be offered under Fed. R. Evid. 702. If that is the case, they
must be excluded under Fed. R. Civ. P. 26(a)(2)(C) because a party is required to
disclose the identity of any expert witness it may use at trial to present evidence
under Rules 702, 703, or 705. Fed. R. Civ. P. 37(c)(1) gives teeth to these
requirements by forbidding the use at trial of any information required to be
disclosed by Fed. R. Civ. P. 26(a) that is not properly disclosed. See Hoffman v.
Construction Protective Services, Inc., 541 F.3d 1175, 1180 (9th Cir. 2008); see
also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1101 (9th Cir.
2001).
8. As explained in PCNA’s Motion in Limine No. 1, PCNA sought to
meet and confer with plaintiff, without any success.
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Case 2:14-cv-03747-PSG-MRW Document 103 Filed 03/18/16 Page 3 of 4 Page ID #:2035
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PCNA’S MOTION IN LIMINE NO. 5—RACING EXPERIENCE & DRIVING ABILITY
For these reasons, the Court should exclude Messrs. Westphal and Aspesi
and bar all evidence of Roger Rodas’s driving skill, racing experience and driving
experience. Dated: March 18, 2016 LEE, HONG, DEGERMAN, KANG &
WAIMEY
By: /s/ Anika S. Padhiar Stephen T. Waimey Yvonne Dalton Anika S. Padhiar
and SPENCER SHUFORD LLP Christopher C. Spencer Mark C. Shuford Adam L. Lounsbury Attorneys for Defendant PORSCHE CARS NORTH AMERICA, INC.
Case 2:14-cv-03747-PSG-MRW Document 103 Filed 03/18/16 Page 4 of 4 Page ID #:2036
