Laurence Harper vs. Raul Najera Lopez

Motion in Limine

Cal. Super. - 4th Dist.April 13, 2016

A I T K E N 4 A I T K E N + " O H N 3 M A C A R T H U R PL AC ! L o a OS NO NN O N Wn 1 11 12 13 IT E 80 0 14 15 16 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E 17 18 19 20 S A N T A AN A, CA 92 70 7 21 22 23 24 25 26 27 “NO %o PRINTED ON RECYCLED PAPER ELECTRONICALLY FILED ATTICUS N. WEGMAN, ESQ. (SBN 273496) Superiar Eeurt af Ealifamia, AITKEN 4+ AITKEN + COHN County of Orange 3 MACARTHUR PLACE, SUITE 800 06/15/2018 at 02:29:00 PIM P.0. BOX 2555 Clerk of the Superior Court SANTA ANA, CA 92707-2555 By Jorge A Gomez, Deputy Clerk (714) 434-1424/(714) 434-3600 FAX Attorneys for Plaintiffs LAURENCE HARPER and MICHAEL YN MILOSEVICH-HARPER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER LAURENCE HARPER, an individual; ) CASE NO: 30-2016-00846007 a MILOSEVICH-HARPER, an [Hon. Theodore Howard, Dept. C18] individual; oo Ms PLAINTIFFS’ MOTION IN LIMINE Vs. ) NO. 4 RE EXCLUDING ) DEFENDANTS’ EXPERT KENETH RAUL NAJERA LOPEZ, an individual; ) SOLOMON FROM PROVIDING CAPISTRANO FORD, a business organization, AIRBAG DEPLOYMENT AND form unknown; DOES 1 to 10, inclusive; ) BIOMECHANICAL OPINIONS; Defendants. ) DECLARATION OF ATTICUS N. : WEGMAN; [PROPOSED[ ORDER Trial Date: May 7, 2018 AND RELATED CROSS-ACTIONS. y Time: 9:00 a.m. Dept.: C18 ) p Complaint Filed: 4/13/16 TO THE HONORABLE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiffs will move the Court for issuance of the following order relating to Motion in Limine No. 4: 1 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N # " O H N 0 L N SS OO xX NN O N Wn 1 11 12 13 14 I TE 80 0 S A N T A AN A, CA 92 70 7 15 16 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E 17 18 19 20 21 22 23 24 25 26 27 3 M A C A R T H U R PL AC . NO wo PRINTED ON RECYCLED PAPER An order precluding Defendants’ counsel from introducing evidence of the non- deployment of airbags in Plaintiff Laurence Harpers vehicle and any biomechanical opinions through expert Kenneth Solomon; An order requiring the attorneys for all parties to instruct their witnesses of the court's exclusionary order on this motion; and An order requiring the attorney for Defendants, prior to making any references, comments, or assertions concerning such matters, to approach the bench and make an offer of proof to the court so that the court, prior to any presentation of the above-referenced evidence to the jury, can make a preliminary determination of the relevancy and admissibility thereof. This motion is based on this Notice, the accompanying Memorandum of Points and Authorities, the Declaration of Atticus N. Wegman, the complete file maintained by the Court in this action, and all such other oral and documentary evidence as may be presented at the time of hearing on this motion. Dated: June 14, 2018 AITKEN+AITKEN 4+ COHN ATTICUS N. WEGKJAN, ESQ. Attorneys for Plaintiffs 2 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N Z " O H N S OO X N O n RA W N F- t A pe d p a LW N D = IT E 80 0 SA NT A AN A, CA 92 70 7 -_ aA Ln» BN 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E 3 M A C A R T H U R P L A C : D O N ON N N N ON m m aA L R A W N ~~ © © ® 4 No ~ NO ws PRINTED ON RECYCLED PAPER MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Mr. Harper brings this motion in limine pursuant to California Evidence Code section 720(a) and related case law to exclude the certain subject areas of Defendants’ expert, Kenneth Solomon’s testimony. On December 7, 2015, around 2:00 p.m., Plaintiff Mr. Laurence Harper was traveling alone in his four-door sedan on his way to his house on Camino Capistrano Boulevard in San Juan Capistrano, Ca. There are four lanes of travel on Camino Capistrano Boulevard, two Northbound lanes and two Southbound lanes, separated by an open median. Plaintiff Mr. Harper was traveling Southbound in the slow lane. Without any warning or ability to take evasive action, Defendant Raul Lopez, working for his employer Defendant Tuttle Click Capistrano Ford, Inc., entered into Plaintiff Mr. Harper’s lane of travel as he negotiated a left turn onto Camino Capistrano Boulevard from the Tuttle Click Capistrano Ford, Inc. car dealership. Both vehicles collided, and Plaintiff Mr. Harper sustained major injuries to his neck (requiring fusion surgery), back (requiring fusion surgery), left shoulder (requiring surgery), right shoulder (requiring surgery), and minor injuries to his right wrist and right foot. Defendant Mr. Lopez and Defendant Tuttle Click Capistrano PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER S © © 9 O N wn R A W L I N S - t e d e d pe LW N D = IT E 80 0 S A N T A AN A, CA 92 70 7 -_ = AN On BH 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E - ~ A I T K E N 4 A I T K E N ” "O HN 3 M A C A R T H U R PL AC iL D O No No NO No No NO - - AN Wn ~~ Ww No -_ oS Oo lee ] No ~ “NO ws PRINTED ON RECYCLED PAPER Ford, admit they were partially negligent, but dispute the nature and extent of Plaintiffs’ harms and losses. Defendants Mr. Lopez and Tuttle Click Capistrano Ford and Plaintiffs Mr. Harper and Mrs. Harper (who maintains a claim for loss of consortium) allege that Defendant Cervando Salgado, working for his employer Defendant URS Midwest, Inc., is at least partly responsible for parking its car hauler and trailer with cars loaded on an adjacent red curb, thus impeding the ability for motorists to see each other. Defendant Mr. Salgado and Defendant URS Midwest, Inc., admit they were parked illegally, but do not admit they were negligent or that Mr. Harper and Mrs. Harper were harmed. II. FEDERAL PREEMPTION LAWS PRECLUDE MR. SOLOMON FROM OFFERING OPINIONS AS TO AIRBAG DEPLOYMENT Mr. Solomon claims that Chrysler, the manufacturer of Plaintiff Mr. Harper's vehicle, should have been sued in this action due to airbag malfunction: MR. SOLOMON: I’m not sure why Chrysler wasn’t brought into this action-is something that-I may have mentioned this to Ms. Braasch. Because the airbags should have activated. (Solomon depo. 43:24-24-44:1-3 attached as Exhibit A). Notwithstanding Mr. Solomon’s lack of qualifications and basis for such opinion, which will be addressed below, federal preemption laws prevented Plaintiffs from bringing any action against Chrysler, even had they wanted to assuming there was evidence of malfunction, which there is not. Federal preemption refers to the doctrine that a higher authority of law will displace the law of a lower authority when the two conflict. Rooted in the Supremacy Clause of the United States Constitution, Federal law will rule over state law when conflicts exist. U.S.C. Const. Art. VI cl. 2. In the National Traffic and Motor Vehicle Safety Act of 1966, Congress established a uniform comprehensive regulatory scheme governing the safety design features of motor vehicles. The act intended to place "primary responsibility" for setting safety standards "squarely upon the Federal Government." S.Rep. No. 1301, 89th Cong., 2d Sess., 12 (1966). 4 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER OO «0 J OO Wn BA W N IT E 80 0 - - - - - - wh ~ Ww N o -_ oS 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E -_ aN i ~ A I T K E N 4 A I T K E N ” " O H N 3 M A C A R T H U R P L A C . S A N T A A N A , C A 92 70 7 ND N N N N N N = = aN Wn A LW ND = OO OVO © No ~ NO we PRINTED ON RECYCLED PAPER Congressional reports demonstrate the intent of the national legislature, “to result in uniformity of standards so that the public as well as industry will be guided by one set of criteria rather than by a multiplicity of diverse standards,” Id. The Supreme Court in Geier v. American Honda Motor Co., Inc. (2000) 120 S. Ct. 861 echoed this intention finding that state law tort claims against vehicle manufacturers for issues relating to airbags are preempted by Federal Motor Vehicle Safety Standard 208. Federal Motor Vehicle Safety Standard 208 regulates automotive occupant crash protection in the United States. See Williamson v. Mazda (2008) 167 Cal. App.4™" 905. Federal Motor Vehicle Safety Standard 208 and its preemptive effect on state tort law causes of action against vehicle manufacturers for passive restraint systems including airbags and seatbelts has been upheld as part of California law for at least the past decade. Williamson v. Mazda (2008) 167 Cal. App.4" 905. In the instant case, Plaintiffs could not have added Chrysler to this litigation even if they agreed with Mr. Solomon’s opinions that Mr. Harper's airbags should have deployed (which Plaintiffs do not). Federal preemption precludes such an action and therefore Plaintiffs would be unduly prejudiced pursuant to Evidence Code Section 352 if the jury were allowed to hear this argument. III. FEDERAL PREEMPTION ASIDE, MR. SOLOMON HAS NO FOUNDATION TO OFFER OPINIONS RELATING TO AIRBAG DEPLOYMENT Evidence Code 720(a) sets out clear requirements for expert qualification as follows: “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training or education must be shown before the witness may testify as an expert.” Further, Evidence Code §803 permits the court to “exclude testimony in the form of an opinion that is based in whole or in significant part on a matter that is not a proper basis for such an opinion.” Regarding necessary foundation, modern California courts have required close scrutiny of expert opinion before the expert is allowed to testify. Appellate courts have been showing 5 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER BA W N OO 0 3 O&O Wn 10 11 12 13 14 15 16 IT E 80 0 “ O H N S A N T A AN A, CA 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E 17 18 19 20 21 A I T K E N 4 A I T K E N ~ 3 M A C A R T H U R PL AC . 22 23 24 25 26 27 Ao wv PRINTED ON RECYCLED PAPER particular disaffection with allowing professional experts to espouse their point of view even though the facts of the particular case do not support it. These courts have handed down a clear directive that the foundations for expert opinions must be closely examined before the expert is permitted to use the witness stand as a soapbox. See PG&E v. Zuckerman (1987) 189 CA3d 1113; Hyatt v. Sierra Boat Co. (1978) 79 CA3d 325. A. Mr. Solomon Has Not Demonstrated Proper Foundation Allowing Him to Offer Opinions Relating to Defective Airbags of Plaintiffs 2006 Chrysler 300¢ Mr. Solomon does not possess expert knowledge of airbag functionality. His foundational authority is insufficient: ATTORNEY: Have you ever participated in any instrumented crash test, dummy test, relating to the deployment of airbags? MR. SOLOMON: Sure, I've observed them. I’ve not run them. (Solomon depo. 48:5-14). ATTORNEY: How far away were you from that [crash test] when that happened? MR. SOLOMON: A fair distance. I can’t really remember. I would say more than 100 meters. (Solomon depo. 49:5-8). ATTORNEY: What kind of vehicle was being used? MR. SOLOMON: I don’t recall, sir. ATTORNEY: How many crashes were done? MR. SOLOMON: Just one. (Solomon depo. 49:14-17). ATTORNEY: Okay. And was that in California somewhere? MR. SOLOMON: It was someplace in California, but I don’t recall. It was out in the Inland Empire, in an open area, but I don’t remember any more details about that. (Solomon depo. 49:21-24). Mr. Solomon’s opinions are also based on unreliable publications. The only documents that Mr. Solomon offers to support his opinions about the defective airbags are publications authored or co-authored by himself. See Geffcken v. D'Andrea, 137 Cal. App. 4th 1298, 1311 (2006) (holding that “where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary 6 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N ” " O H N 3 M A C A R T H U R PL AC . SO S OO XX NN O N nn R W IT E 80 0 jo - - -_ -_ -_ W n N N w o N o -_ - AN 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 DO NO NO NO NO No No - - - aN Wn BE N Ww No - S O oo ~ No ~ NO wo PRINTED ON RECYCLED PAPER value.”) Mr. Solomon describes how the literature that supports his opinions was authored or co- authored by himself: ATTORNEY: And that’s all books that you wrote; right? MR. SOLOMON: The one book is one I wrote. ATTORNEY: Co-authored or authored correct? MR. SOLOMON: Yes. (Solomon depo. 170:10-15, 172:3-4 attached as Exhibit B) B. Mr. Solomon’s Defective Airbag Opinions are Speculative In addition to Federal preemption and the lack of foundation to opine as to the airbag functionality of Plaintiff's 2006 Chrysler 300c, Mr. Solomon’s opinions are speculative. In Sargon Enterprises, Inc. v. Univ. of S. Cal (2012) 55 Cal. 4th 747, the Court held that “Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on ‘in forming an opinion upon the subject to which his testimony relates.” We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.” Id. at 770. Mr. Solomon is unable to root his opinions in any fact or applicable scientific test. To begin, he never actually saw either vehicle involved in this incident. He never inspected the vehicle damage or even viewed the airbags he claimed malfunctioned. ATTORNEY: Did you ever review these-actually see these vehicles? MR. SOLOMON: No. ATTORNEY: You didn’t ever inspect the actual damage? MR. SOLOMON: Right. (Solomon depo. 46:9-18). ATTORNEY: You've never seen the airbag, have you? MR. SOLOMON: You've asked that question a few times. My answer is the same. I didn’t see the airbags sir. (Solomon depo. 99:7-10). ATTORNEY: But have you had any cases where a 2005 Chrysler 300c airbag did not activate? MR. SOLOMON: I don’t know that I can associate it directly with that car sir. 7 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N 4 A I T K E N ” T O H N 3 M A C A R T H U R PL AC . S 0 XX 9 ON Un RA W N IT E 80 0 - - - -_ - -_ Wn E E N Ww N o - 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E - AN S A N T A A N A , C A 92 70 7 D O No No NS ] No No \® ) -_ -_ -_ aN Wn ES wo No - oS \O oo ~ No ~ AO wv PRINTED ON RECYCLED PAPER Finally, the single crash test he referenced in his deposition was not the same collision or vehicle type involved in this case. Plaintiff Harper’s vehicle had not even been manufactured at the time that the crash test was observed: ATTORNEY: What kind of vehicle was being used? MR. SOLOMON: I don’t recall, sir. ATTORNEY: How many crashes were done? MR. SOLOMON: Just one. ATTORNEY: And it wasn’t a 2005 Chrysler 300c¢; correct? MR. SOLOMON: I don’t believe so, simply because the time that I saw it was probably before 2006. (Solomon depo. 49:14-20 attached as Exhibit C). As such, Mr. Solomon’s testimony relating to the any alleged airbag defect lacks foundation and is entirely speculative. C. Plaintiffs’ Biomechanical Expert Has Opined that Had Airbag Deployment Occurred, Mr. Harper’s Injuries May Have Been Worse Not only are Mr. Solomon’s airbag opinions lacking in foundation, speculative, and federally preempted, there is evidence offered by Plaintiffs’ biomechanical expert, John Brault that airbag deployment is a known risk factor for upper extremity injury. MR. BRAULT: They’ve never, ever been designed to reduce forces to upper extremities. I can’t imagine how they could given where they’re placed and how they’re placed and what they’re actually designed to reduce. And this shows that-I’m not saying that every airbag deployment causes upper extremity injury, but they certainly can. And I’ve never seen a paper or anyone even propose that airbag deployments reduce upper extremity forces. I've never heard anyone say that verbally, in a deposition, or in a article. (Brault depo. 44:7-18). ATTORNEY: Do you have an opinion that Mr. Harper would have suffered the same injuries that he suffered in this case had it deployed? MR. BRAULT: Yes. (Brault depo. 105:13-21 attached as Exhibit D). See also Geier v. American Honda Motor Co., Inc. 120 S. Ct. 861, 879 (2000) (explaining that the Department of Transportation rejected a proposal to require all vehicles to carry airbags due to safety concerns). Frontal airbags such as the subject airbags in the instant case are not 8 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER “ O H N A I T K E N 4 A I T K E N ~ 3 M A C A R T H U R P L A C L S S 0 XX 9 a wn B R A W N I T E 80 0 - pt i id - - -_ Wn EA N w o N o -_ - [@ ) 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 BN ON ON ON ON ON OK oe es A LU E W N = © © ® 4 NS ] ~ Ao «7 PRINTED ON RECYCLED PAPER designed to prevent rotator cuff tears or transverse process fractures relevant to this case, but to prevent death when a head strikes the steering wheel. IV. MR. SOLOMON’S BIOMECHANICS OPINIONS MUST BE EXCLUDED Prohibiting an unqualified expert from testifying to matters outside the scope of his qualifications, such as interpreting biomechanical scientific tests, is critical to a fair trial in this case. This is because it is well known that jurors tend to ascribe an “inordinately high degree of certainty to scientific methods and that the potential impact of such evidence is properly counter balanced by an extra preliminary requirement of showing of reliability.” People v. Stoll (1989) 49 Cal.3d 1136. Admissibility of expert testimony based on “a new scientific technique” requires proof of its reliability - i.e., that the technique is “sufficiently established to have gained general acceptance in the particular field to which it belongs.” People v. Venegas (1998) 18 Cal. 4th 47. Moreover, a witness testifying to such reliability “must be properly qualified as an expert to give an opinion on the subject.” /d. The Kelly-Frye threshold is a three-prong test of reliability to protect jury from scientific techniques that convey a misleading aura of certainty: 1) there must be proof that the technique is considered reliable in the scientific community; 2) the witness testifying about the technique must be a qualified expert on the subject, and 3) there must be proof that the correct scientific procedures have been used in the particular case. Here, Mr. Solomon is qualified as a mechanical engineer and accident reconstructionist. However, a review of Mr. Solomon’s curriculum vitae shows that he does not have any formal education in anatomy, physiology, and/or occupant kinematics to act as a biomechanist. These courses are the bare minimum necessary in order for a biomechanist to render opinions about what happens to the human body in an automobile collision. It is not surprising that Mr. Solomon holds himself out as a biomechanist for business purposes. Mr. Solomon, per his deposition and his CV, which is attached hereto as Exhibit E, is an expert of all trades. He holds himself out as an expert in nuclear power plants, human factors, counter terrorism and weapons nonproliferation, to list a few. 9 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER Y H N A I T K E N 4 A I T K E N 3 M A C A R T H U R P L A C L SO OO XX 9 Un B R A W N IT E 80 0 -_- - - - - - Wn EE N Ww [N S] - fd aN 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E S A N T A A N A , C A 92 70 7 N O R N O N N N N N = em A UL RE W N -~ © © oo No Q Ao % PRINTED ON RECYCLED PAPER Demonstrating Mr. Solomon’s lack of requisite knowledge in the field of biomechanics, Plaintiff’s expert, John Brault, testified to Mr. Solomon’s erroneous calculation process for impact forces to the body, specifically the calculation of Nij (a criterion developed to measure frontal impact injuries based on combined axial forces with flexion/extension bending movements): MR. BRAULT: “He [Kenneth Solomon] made some, I thought, inappropriate assumptions where he calculated the average acceleration to the car and then he doubled it to get the peak acceleration to the car. And then he assumed that the average in peak acceleration to the car was the same average in peak acceleration to the occupant’s neck and lumbar spine, if I read his notes correctly, which just isn’t even close to accurate and this paper shows it.” (Brault depo. 33:20-25-34:1-6). Mr. Solomon attempted to calculate Nij by hand, which according to the predominant research in the field, cannot be done. A crash test is required, which he did not conduct, as stated above: MR. BRAULT: “I mean, it’s quite complicated if you want to read through this, but it isn’t just taking an assumed head acceleration in the X direction and using it to calculate force in the Z direction or vertical direction, and that’s what he did. Completely improper.” (Brault depo. 36:19-25). Mr. Brault goes on to comment on the non-peer-reviewed nature of Mr. Solomon’s articles, demonstrating a lack of knowledge in the field of biomechanics: MR. BRAULT: Some of his work-or all of his work that I’ve ever seen, I’ve never seen it in an index journal. Meaning if you go to PubMed, which is the national library of medicine website that lists 28 million sources, he doesn’t have single reference in there. (Brault depo. 39:12-17). MR. CODY: And the significance of that to you is what? MR. BRAULT: Well, to me, it suggests he just published--- he tries to publish things to make himself be an expert. I mean, you just look at his articles on injury, shoulder injury mechanisms. He or someone else who co-authored it read somebody else’s work and summarized it in a review article and then submitted it to a website. It’s just not that rigorous. That’s just not how science works. (Brault depo. 40:17-25-41:1-4 attached as Exhibit I"). 10 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER BS L N SS 0 XX NN O N Wn 1 11 12 [3 14 I TE 80 0 “ I H N 15 16 17 A I T K E N 4 AI TK EN ~ 3 M A C A R T H U R PL AC SA NT A AN A, CA 92 70 7 71 4- 43 4- 14 24 71 4- 43 4- 36 00 FA CS IM IL E 18 19 20 21 22 23 24 25 26 27 NO wv PRINTED ON RECYCLED PAPER Vv. CONCLUSION Plaintiffs respectfully requests that the Court grant this motion in its entirety. Dated: June 15, 2018 AITKEN+AITKEN+ COHN ATTICUS N. GMAN, ESQ. Attorneys for Plaintiffs 11 PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS; DECLARATION OF ATTICUS N. WEGMAN; [PROPOSED] ORDER A I T K E N +4 A I T K E N " " O H N 3 M A C A R T H U R P L A C OO 0 9 O N Wn Bs W N JI TE 80 0 -_ - -_- p t -_- - w n a Ww N o - oO 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E - AN S A N T A A N A , C A 92 70 7 No NO No No No No No No -_ -_ - ~ DN Wn EE N Ww No - oS © oo | [\ ®) 0 £9 PRINTED ON RECYCLED PAPER PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 3 MacArthur Place, Suite 800, Santa Ana, California, 92707. On June 15, 2018 I served the foregoing documents described as PLAINTIFFS’ MOTION IN LIMINE NO. 4 RE EXCLUDING DEFENDANTS’ EXPERT KENNETH] SOLOMON FROM PROVISING AIRBAG DEPLOYMENT AND BIOMECHANICAL OPINIONS on the parties herein in this action by placing ( ) the original (x) a true copy thereof in a sealed envelope addressed as indicated on the attached service list. (X) BY MAIL (X) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date =A meter date is more than one day after date of deposit for mailing an affidavit. ( ) By Personal Service: I caused the above-referenced the document(s) to be delivered by hand to the attached addressees. ( ) By Overnight Courier: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above address(es). ( ) By Facsimile Machine: I caused the above-referenced document(s) to be transmitted to the above-named persons at the following telephone number(s) see attached Proof of Service list. () By Email Transmission: I caused the above-referenced document(s) to be transmitted to the persons listed in the attached Proof of Service lists. Executed on June 15, 2018 at Santa Ana, California. (X) (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. ihe AAPL Ds Kristin McCarthy ¢ 1 PROOF OF SERVICE A I T K E N 4 A I T K E N # “ O H N L N Oo ©0 0 J O N W n 10 11 12 13 IT E 80 0 S A N T A A N A , C A 92 70 7 14 15 16 17 18 71 4- 43 4- 14 24 71 4- 43 4- 36 00 F A C S I M I L E 3 M A C A R T H U R P L A C 19 20 21 2 24 25 26 27 28 &» PRINTED ON RECYCLED PAPER HARPER v. LOPEZ, et al. SERVICE LIST Debra L. Braasch BROWN, BONN & FRIEDMAN, LLP 4 Hutton Center, Suite 350 Santa Ana, CA 92707 714-427-3900 714-427-5449-fax and Scott L. MacDonald MACDONALD & CODY LLP 38 Executive Park, Suite 280 Irvine, CA 92614 (714) 831-1713 (714) 823-3229-fax Attorneys for Defendants/ Cross- Complainants/Cross-Defendants TUTTLE CLICK'S CAPISTRANO FORD, INC. (erroneously sued and served as "Capistrano Ford") and RAUL NAJERA LOPEZ Richard C. Moreno, Esq. Steven J. McEvoy, Esq. MURCHISON & CUMMING LLP 801 South Grand Ave., 9th Floor Los Angeles, CA 90017 (213) 623-7400 (213) 623-6336-fax Attorneys for Defendants/Cross- Complainants /Cross-Defendants DNJ SERVICES LLC, DONALD PINKUS; Defendants/Cross-Defendants CERVANDO SALGADO, ROE 1 AND URS MIDWEST, INC., ROE 2 2 PROOF OF SERVICE