Cesar Andrade vs. Kume Yun Wells

Opposition

Cal. Super. - 4th Dist.June 28, 2016

10 1 12 13 14 15 16 AL 18 19 20 21 22 23 24 25 26 27 28 BRIAN R. MASON ESQ., (State Bar No.: 257420) RAFFALOW, BRETOI & ADAMS 9635 Granite Ridge Drive, Ste. 210 y . : > ELECTRONICALLY FILED San Diego, California 92123 Superior Court of California, Telephone (858) 694-4174 County of Orange Fax (858) 694-4180 E-Service Address: SanDiegolegal(@mercuryinsurance.com 05/31/2018 at 03:55:00 PM Clerk of the Superior Court Attorney for Defendants: ~~ KUME YUN WELLS and ROGER | By & Clerk, Deputy Clerk Our File No.: 16-63237-88 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CESAR ANDRADE, CASE NO: 30-2016-00860380-CU-PA-CJC Dept. C-21; Judge Mary F. Schulte; Plaintiff, Complaint Filed: 6/28/16 VS. IMAGED FILE KUME YUN WELLS; ROGER D. WELLS; AND | DEFENDANTS’ OPPOSITION TO DOES 1 TO 25, PLAINTIFF’S MOTION IN LIMINE #4 Defendants. TRIAL DATE: June 4, 2018 TIME: 08:30AM DEPT: C-21 TO: ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendants, KUME YUN WELLS and ROGER D. WELLS hereby file this opposition to Plaintiff's Motion in Limine #4: “TO EXCLUDE EXPERT WITNESS TESTIMONY OF DEFENSE EXPERT DANIEL TRUDELL.” L STATEMENT OF RELEVANT FACTS This case arises out of an automobile accident that occurred on July 10, 2015, on the Interstate 5 in Santa Ana, CA. As a result of the accident, Plaintiff, CESAR ANDRADE, alleges personal injuries and damages. The Defendants have admitted that negligence but deny that the negligence was a substantial factor in causing any harm to the Plaintiff. il Defendants’ Limited Opposition to Plaintiffs Motion in Limine #4 10 11 12 1.3 14 15 16 LF 18 1.9 20 2.1 22 23 24 25 26 27 28 The defense has hired a spinal surgeon, Dr. P. Douglas Kiester, M.D., to examine the Plaintiff and review all of his medical records. He testified in his deposition recently that the Plaintiff was not injured in this minor collision. The defense also hired an accident reconstruction expert, Dan Trudell. Mr. Trudell will testify regarding the impact speed of the collision, the delta-v involved in the collision, the calculated g-forces that would have been applied to Plaintiff during the collision, the occupant movements that would have occurred inside the Plaintiff's vehicle, and provide examples of everyday activities of similar force. Mr. Trudell will also testify regarding his inspection of the two vehicles and the fact that he downloaded the event data recorder information from each vehicle. However, the impact was too minor in force for the event data recorder to even record an event on either vehicle. Mr. Trudell will testify that the parameters are set to record events of 5 miles per hour or greater. Plaintiff’s originally designated their own accident reconstruction expert, Stephen Plourde, to combat Mr. Trudell’s opinion. However, they de-designated Mr. Plourde while defense counsel was driving to Plaintiff's counsels office for Mr. Plourde’s deposition. Because the de-designation was not done timely prior to the deposition and defense counsel and a court reporter were present for the deposition, a non-appearance was entered onto the record. Since then, Plaintiff’s counsel have indicated that they would stipulate to two of Mr. Trudell’s opinions, that the impact speed was 3-5 miles per hour and the delta-v was 2.2 to 3.7 miles per hour. It is believed that they suggested this stipulation to try and render Mr. Trudell’s testimony “irrelevant.” However, this argument and motion is flawed in many ways. II. MR. TRUDELL’S TESTIMONY IS RELEVANT TO KEY ISSUES TO THE DEFENSE OF THIS CASE The entire defense of this case is that the Plaintiff was not injured in this 3-5 mile per hour accident, which caused only $14.79 (fourteen dollars and seventy nine cents) in damage to Defendant’s vehicle. The first question the jury in this case will be asked to decide is whether this automobile collision caused the harm alleged by Plaintiff. In his deposition on March 23, 2017 the Plaintiff testified under 2 Defendants’ Limited Opposition to Plaintiff's Motion in Limine #4 10 Aad 12 13 14 15 16 17 18 19 20 20 22 23 24 25 26 27 28 oath that he continued to have daily pain to his neck, back, and head as a result of this accident. Two years after this 3 mile per hour collision he claimed, under oath, that he could no longer do everyday living activities such as playing sports with his kids and lifting weights. The Plaintiff is also claiming over $26,000 in medical bills, all of which are on a personal injury lien referred by his personal injury attorney. When the Plaintiff testifies to these exorbitant medical bills and years of pain, the jury should be able to learn information regarding the forces involved in this collision. Mr. Trudell’s testimony goes directly to causation of damages. When the jury answers the question of “did the automobile collision cause what the Plaintiff is alleging?” they should know how hard this collision was. What were the forces involved in this collision? How can these forces be quantified into everyday activities that the jury can understand? These are all questions that Mr. Trudell is qualified to answer, can answer for this jury, and has testified to in a number of similar cases in courts throughout California. To exclude these opinions would be highly prejudicial to the defense and would be improper. Further, CACI Jury Instruction 3905A, which the Plaintiff has requested in this matter, tells the jury that they “must use [their] judgment to decide a reasonable amount [of general damages] based on the evidence and [their] common sense.” (CACI Jury Instruction 3905A, emphasis added). In using their “common sense” in determining general damages, Mr. Trudell will testify that he can quantify the forces in this collision similar to “slamming on the brakes” or “bumping a curb during a parking maneuver.” These are also common every day experiences that the jury will understand and will allow them to use their “common sense” in determining whether such forces would be a “substantial cause” in Plaintiff's alleged damages. Additionally, Mr. Trudell will testify that Plaintiff's deposition testimony and prior statements that he struck his knees on the dashboard is not consistent with the forces of this impact. That is relevant to his credibility pursuant to Evidence Code section 780. 17 1" I" 3 Defendants’ Limited Opposition to Plaintiff's Motion in Limine #4 10 dd, 12 iis 14 15 16 17 18 1.9 20 21 22 23 24 25 26 27 28 III. THE PLAINTIFF SEEKS TO CONFUSE THE JURY ON THIS ISSUE AND HIDE THE TRUTH FROM THEM The Plaintiff’s counsel have suggested a stipulation to the speed and delta-v and now seek to exclude Mr. Trudell on the grounds that he is not relevant. However, his testimony goes well beyond just speed and delta-v as he explains to the jury what delta-v is and what the forces are to the Plaintiff. Further, his testimony will go put these forces into everyday common experiences that the jury can understand. By stipulating to the speed and delta-v and trying to exclude the rest Plaintiftf’s counsel is attempting to confuse the jury and not allow them to learn the true forces, or lack thereof, in this collision. They want to stand up in front of this jury and ask for extraordinary amounts of money for past medical specials and pain and suffering for this collision. Mr. and Mrs. Wells have a right to put on a defense and explain to the jury what type of forces were involved in this collision when they make their decision. Defendants have a Constitutional Right to Due Process and a Fair Trial under both the United States Constitution and the California Constitution. Excluding their expert witness on the grounds of relevance as Plaintiff has alleged would violate those rights and result in an unfair and prejudicial trial. IV. THE FACT THAT DAN TRUDELL WILL NOT DISCUSS WHETHER THE FORCES INVOLVED CAUSED INJURY IS PROPER - AS EXPERT TESTIMONY IS INADMISSABLE WHEN ON A SUBJECT WITH COMMON EXPERIENCE Expert testimony is required in this case to determine the impact speed, delta-v, results of the event data recorders, g-forces, occupant kinematics, and an explanation of what all of this means in terms of everyday laymen’s activities. However, Plaintiff's now claim that Mr. Trudell should not be allowed to testify, at all, because he does not go one step further and say whether those everyday activities would or could cause injury. 4 Defendants’ Limited Opposition to Plaintiff’s Motion in Limine #4 10 AL J 12 13 14 15 16 17 18 19 20 Zi 22 23 24 25 26 27 28 This argument is highly flawed. It is well settled in California that expert testimony is inadmissible on subjects within common experience. [See Cal. Evid. Code §801; Kotla v. Regents of University of California (App. 1 Dist. 2004) 8 Cal.Rptr.3d 898, 115 Cal. App.4th 283]. “Expert opinion evidence should be excluded when the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.” /d. Thus, once Dan Trudell uses his expertise to put these forces into common everyday experiences, it is not necessary that he go one step further and say whether this causes injury as the jury will have common knowledge to know whether stepping on your brakes or hitting a curb at slow speeds when parking causes the type of injuries being claimed. V. CONCLUSION Defendant requests that Plaintiff’s Motion in Limine No. 4 to exclude the testimony of Daniel Trudell be denied in its entirety. Clearly this evidence is relevant and must not be excluded. DATED: © ~ 39 g RAFFALOW, BRETOI & ADAMS BY _&L/C/ BRIAN R. MASON, ESQ. Attorneys for Defendant KUME YUN WELLS and ROGER D. WELLS 5 Defendants’ Limited Opposition to Plaintiff’s Motion in Limine #4 10 110 12 13 14 15 16 157 18 1.9 20 21 22 23 24 25 26 27 28 1. DECLARATION OF BRIAN R. MASON, ESQ. I, BRIAN R. MASON, ESQ. declare as follows: That I am an attorney at law, duly licensed to practice law before all the courts of the State of California and that I am a member with the Law Firm of Raffalow, Bretoi & Adams, attorneys of record herein for Defendant, KUME YUN WELLS and ROGER D. WELLS. The following information is within my personal knowledge, except for that information that I allege upon information and belief, and, if called upon to testify, I could and would testify competently hereto. 2. That I am the attorney assigned to defend KUME YUN WELLS and ROGER D. WELLS and [ am familiar with the pleadings and file herein. This case arises out of an automobile accident that occurred on July 10, 2015, on the Interstate 5 in Santa Ana, CA. As a result of the accident, Plaintiff, CESAR ANDRADE, alleges personal injuries and damages. The Defendants have admitted that negligence but deny that the negligence was a substantial factor in causing any harm to the Plaintiff. The defense has hired a spinal surgeon, Dr. P. Douglas Kiester, M.D., to examine the Plaintiff and review all of his medical records. He testified in his deposition recently that the Plaintiff was not injured in this minor collision. The defense also hired an accident reconstruction expert, Dan Trudell. Mr. Trudell will testify regarding the impact speed of the collision, the delta-v involved in the collision, the calculated g- forces that would have been applied to Plaintiff during the collision, the occupant movements that would have occurred inside the Plaintiff’s vehicle, and provide examples of everyday activities of similar force. Mr. Trudell will also testify regarding his inspection of the two vehicles and the fact that he downloaded the event data recorder information from each vehicle. However, the impact was too minor in force for the event data recorder to even record an event on either vehicle. Mr. Trudell will testify that the parameters are set to record events of 5 miles per hour or greater. Plaintiff’s originally designated their own accident reconstruction expert, Stephen Plourde, to combat Mr. Trudell’s opinion. However, they de-designated Mr. Plourde while I was driving to Plaintiff’s counsel’s office for Mr. Plourde’s deposition. 6 Defendants’ Limited Opposition to Plaintiff's Motion in Limine #4 10 1 12 1.3 14 1.5 16 1.7 18 19 20 21 22 2:3 24 25 26 27 28 19, 11, 12. 13. 14. 15. 1" 11 Because the de-designation was not done timely prior to the deposition and defense counsel and a court reporter were present for the deposition, a non-appearance was entered onto the record. Since then, Plaintiff’s counsel have indicated that they would stipulate to two of Mr. Trudell’s opinions, that the impact speed was 3-5 miles per hour and the delta-v was 2.2 to 3.7 miles per hour. It is believed that they suggested this stipulation to try and render Mr. Trudell’s testimony “irrelevant.” However, this argument and motion is flawed in many ways. The entire defense of this case is that the Plaintiff was not injured in this 3-5 mile per hour accident, which caused only $14.79 (fourteen dollars and seventy nine cents) in damage to Defendant’s vehicle. The first question the jury in this case will be asked to decide is whether this automobile collision caused the harm alleged by Plaintiff. In his deposition on March 23, 2017 the Plaintiff testified under oath that he continued to have daily pain to his neck, back, and head as a result of this accident. Two years after this 3 mile per hour collision he claimed, under oath, that he could no longer do everyday living activities such as playing sports with his kids and lifting weights. The Plaintiff is also claiming over $26,000 in medical bills, all of which are on a personal injury lien referred by his personal injury attorney. When the Plaintiff testifies to these exorbitant medical bills and years of pain, the jury should be able to learn information regarding the forces involved in this collision. By stipulating to the speed and delta-v and trying to exclude the rest Plaintiff’s counsel is attempting to confuse the jury and not allow them to learn the true forces, or lack thereof, in this collision. They want to stand up in front of this jury and ask for extraordinary amounts of money for past medical specials and pain and suffering for this collision. Mr. and Mrs. Wells have a right to put on a defense and explain to the jury what type of forces were involved in this collision when they make their decision. 7 Defendants’ Limited Opposition to Plaintiff's Motion in Limine #4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. 17. Additionally, Mr. Trudell will testify that Plaintiff’s deposition testimony and prior statements that he struck his knees on the dashboard is not consistent with the forces of this impact. That is relevant to his credibility pursuant to Evidence Code section 780. Defendants have a Constitutional Right to Due Process and a Fair Trial under both the United States Constitution and the California Constitution. Excluding their expert witness on the grounds of relevance as Plaintiff has alleged would violate those rights and result in an unfair and prejudicial trial. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 3» = day of May, 2018 at San Diego, California. 2 BRIAN KR. MASON, ESQ. Declarant 8 Defendants’ Limited Opposition to Plaintiff's Motion in Limine #4 POS-050/EFS-050 ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NO: 257420 FOR COURT USE ONLY NAME: BRIAN R. MASON, ESQ. FIRM NAME: RAFFALOW, RHOADS & BRETOI STREET ADDRESS: 9635 Granite Ridge Dr., Ste. 210 crv: San Diego state: Califor zip cope: 92123 TELEPHONE NO.: (858) 694-4174 FAX NO E-MAIL ADDRESS: bmason@mercuryinsurance.com ATTORNEY FOR (name): Def.,, KUME YUN WELLS and ROGER D. WELLS SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE STREET ADDRESS 700 Civic Center Drive West maiLING ADDRess 700 Civic Center Drive West CITY AND IP CODE: Santa Ana, 92701 BRANCH NAME Central Justice Center CASE NUMBER: 30-2016-00860380-CU-PA-CIC PLAINTIFF/PETITIONER: CESAR ANDRADE DEFENDANT/RESPONDENT: KUME YUN WELLS, ET AL. JUDICIAL OFFICER: GLENN R. SALTER PROOF OF ELECTRONIC SERVICE cy 1. lam at least 18 years old. a. My residence or business address is (specify): 9635 Granite Ridge Dr., Ste. 210, San Diego, CA 92123 b. My electronic service address is (specify): bmason@mercuryinsurance.com 2. | electronically served the following documents (exact titles): Defendant’s Opposition to Plaintiff’s Motion in Limine #4 [] The documents served are listed in an attachment. (Form POS-050(D)/EFS-050(D) may be used for this purpose.) 3. | electronically served the documents listed in 2 as follows: a. Name of person served: Spencer A. Stein, Esq. On behalf of (name or names of parties represented, if person served is an attorney). CESAR ANDRADE b. Electronic service address of person served : spenceriickdpilaw.com c. On (date): 5/31/18 [_] The documents listed in item 2 were served electronically on the persons and in the manner described in an attachment. (Form POS-050(P)/EFS-050(P) may be used for this purpose.) — oS Date: § — 20/1 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. A w= Brian R. Mason, Esq. k Jf Lr (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) Page 1 of 1 Form Approved for Optional Use PROOF OF ELECTRONIC SERVICE Cal. Rules of Court, rule 2.251 Judicial Council of California www.courts.ca.gov POS-050/EFS-050 [Rev. February 1, 2017] (Proof of Service/Electronic Filing and Service) Westlaw Doc & Form Builder