IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF [COUNTY] [PLAINTIFF], ) CASE NO. ) Plaintiff, ) v. ) ) PLAINTIFF S MOTIONS IN [DEFENDANT], ) LIMINE ) Defendant. ) MOTIONS Plaintiff moves for an order prohibiting reference to, or the offering of evidence of, the following matters during trial: 1. Any questions, suggestions, or inferences about the residency of Plaintiff or any other witness called to testify; 3. Any testimony regarding Defendant s remorse and/or apology; 4. Suggestions or arguments that Plaintiff is seeking a windfall, rolling the dice, that this lawsuit is the equivalent to a lottery, or other phrases or concepts to similar affect; 5. Use of the term independent when referring to a medical examination or medical examiner; Page 1.
6. Any testimony, argument, or inferences regarding Defendant s financial condition or ability to pay a judgment; 7. Any testimony, references, suggestions, or arguments relating to the circumstances (force of impact, speed of vehicles, etc.) that cause an airbag to deploy without testimony at trial from a qualified expert. 8. Any testimony, references, suggestions, inferences, or arguments from non-qualified witnesses and defense counsel relating to the likelihood that the impact from the collision could have caused the alleged injuries. To the extent that any of these motions are granted, Plaintiff requests that the Court require the attorneys to advise their clients and their witnesses, in advance and outside the presence of the jury, of all rulings that apply to their anticipated testimony. POINTS AND AUTHORITIES 1. Any Questions Or Suggestions About The Residency Of Plaintiff Or Any Other Witness Called To Testify. Defendant, Defendant s attorney, and Defendant s witnesses should not be allowed to offer any evidence, argue, or suggest that Plaintiff or any witness is not a legal resident of the United States. In the United States, all parties are treated equally under the law regardless of their nationality. Whether someone is or is not a resident of the United States is not relevant in this action. The existence of this fact one way or another is not necessary to prove or disprove any fact of consequence in this action. Page 2.
Moreover, even if it was relevant, its probative value is substantially outweighed by the danger of unfair prejudice. OEC 401 and 403. 3. Defendant s Remorse And/Or Apology. The Court should exclude all references, inferences, arguments, and evidence of Defendant s remorse, or that he feels sorry for Plaintiff s injuries. Oregon has consistently rejected the admission of a Defendant s post-injury behavior. In Byers v. Santiam Ford, Inc., 281 OR 411, 415 (1978), the Court held that subsequent acts of contrition and a conciliatory attitude were not relevant and not admissible regarding punitive damages. In Mason v. Householder, 58 OR APP 192 (1982), the Court held that admission of testimony that defendant was rehabilitated after plaintiff s injury was reversible error, and that matters occurring at the happening of the tortious act, and unrelated to defendant s state of mind at the time of the events, are inadmissible on the issue of punitive damages. Id. at 195. The Court should exclude any such evidence as its existence or non-existence does not have any bearing on the determinative acts in this case. If such evidence is not admissible in punitive damages cases, where deterrence is a major component of the award, it is not relevant in an ordinary negligence case. Moreover, such evidence would be unduly prejudicial and misleading. OEC 401 and 403. 4. Suggestions Or Arguments That Plaintiff Is Seeking A Windfall, Rolling The Dice, That This Lawsuit Is The Equivalent To A Lottery, Or Other Phrases Or Concepts To Similar Affect. Defense counsel in personal injury cases are sometimes tempted to attack the plaintiff using popular inflammatory political language. This can have a demeaning Page 3.
impact on the plaintiff, their attorney, and the process of resolving civil disputes by jury trial. Examples include arguments that anybody can go to the courthouse and file a lawsuit all it takes is $500 and a piece of paper, or the courts have no quality control regarding lawsuits or that civil lawsuits amount to nothing more than a litigation lotto. Such statements are irrelevant to the determinative issues before the Court, unduly prejudicial, and misleading. A 2003 opinion by the South Dakota Supreme Court states: Defense counsel s statement that plaintiff was trying to hit the lottery by her lawsuit demean not only the plaintiff but also the judicial system itself, and impugn the trial court s judgment of allowing the punitive damage claim to proceed. The comments denigrated the fairness, integrity and public perception of the judicial system. Counsel s reference to playing loto or powerball, or rolling the dice, were only meant to inflame the jury, and were beyond the bounds of proper final argument.interposing such remarks can only be meant to persuade the jury to decide the case based on passion and prejudice. Schoon v. Looby, 2003 SD 123 (2003). Pursuant to the logic set forth in the South Dakota Supreme Court case, and OEC 401 and 403, no such statements or innuendos should be permitted during trial 5. Use Of The Term Independent When Referring To A Medical Examination Or Medical Examiner. It is common in cases like these for counsel and medical experts to call themselves independent medical examiners or to refer to their examination as an independent medical examination. These terms are sometimes repeated multiple times by the defense expert and their attorneys. Jurors, unfortunately, are not aware Page 4.
of the Oregon Rules of Civil Procedure regarding medical examinations. As such, the term independent when describing a medical expert or medical examination case mislead a juror to think that these are experts or examinations have been ordered by the Court. Naturally, an independent examination commissioned on behalf of the Court would hold greater weight than an expert hired by either of the parties. Whether an examination is independent is of no consequence to the determination of the pivotal facts in this case. Its admission into evidence has no probative value and can only mislead the jury. OEC 401 and 403. 6. Defendant s Financial Condition Or Ability To Pay A Judgment. Defendant, Defendant s attorney, and Defendant s witnesses should not be allowed to offer any evidence or argument regarding Defendant s financial condition, work status, or ability to pay for any liability, loss, damage, or injury. Whether a party has the ability to pay has no bearing on the issues of this case and therefore should be excluded from trial. See UCJI 16.01. Moreover, these topics tend to invoke sympathy or bias on the part of the Defendant, which the jury is forbidden from considering. See UCJI 5.02. If Defendant alludes to, or argues, these issues, Plaintiff should be allowed to introduce evidence that Defendant is insured to show that the Defendant can pay for the damages. 7. References, Suggestions Or Arguments Relating To The Circumstances Of What Causes An Airbag To Deploy. Page 5.
The Court should order that the Defendant, his witnesses, and non-certified experts or defense counsel refrain from making arguments or suggesting the conditions under which the airbags of Defendant s vehicle would deploy. Such issues are necessarily within the exclusive province of witnesses having expertise in the deployment and mechanics of airbags. OEC 401, 403, 602 and 702. The only two witnesses the defense will be producing at trial are the Defendant and a medical expert. The Defendant has admitted during depositions that he does not know the circumstances under which his airbags would deploy. Unless proven otherwise, it is highly unlikely that the medical expert has knowledge of the conditions under which airbags would deploy. Airbags may deploy or not deploy depending on a variety of circumstances. Some of which include the sensors triggering the airbag, the angle of the collision, had the airbag previously deployed, had maintenance been performed on the airbag, the age of the airbag, etc. Only an expert with knowledge of this specific vehicle and the circumstances under which the airbag might deploy should be allowed to testify on this matter. Further, when defense counsel makes statements or inferences of this sort, counsel effectively becomes a witness, as they are in effect testifying when stating that x, y, or z is a fact. Counsel cannot, however, be cross-examined or otherwise impeached. Plaintiff will be denied due process if the adverse attorney were allowed to testify without being subject to cross-examination. Page 6.
For the foregoing reasons, the Defendant, Defendant s attorney, and Defendant s witnesses should not be allowed to offer any evidence or argument regarding the circumstances under which Defendant s airbag deploys. 8. Any references, suggestions, inferences, or arguments from nonqualified experts and defense counsel relating to the likelihood that the force of the impact from the collision could not have caused the alleged injuries. The Court should order that the Defendant, his witnesses, and his counsel refrain from giving testimony or making arguments stating or suggesting the force of the collision could not have caused the injuries alleged unless the defendant produces a qualified expert. Such issues are necessarily within the exclusive province of witnesses having expertise in biomechanical engineering and crash reconstruction. OEC 401, 403, 602 and 702. The defense s medical expert has a track record of testifying that the force of a given accident could not have caused the injuries alleged. This medical expert will often review photographs of the collision and make assumptions about the force of the accident. This medical expert is not qualified in crash reconstruction or biomechanical engineering and therefore cannot predict the force of the collision and how much of that force was transferred to the occupants of the car. Moreover, even if he was a crash reconstructionist or biomechanical engineer, he would not be able to give an opinion on the force of the collision based on photographs taken from an insurance adjuster trying to evaluate the value of a the car for replacement purposes. Page 7.
For the same reasons, defense counsel should be instructed not to make any similar arguments or inferences. For the foregoing reasons, the Defendant, Defendant s attorney, and Defendant s witnesses should not be allowed to offer any evidence or argument regarding whether or not the force of the collision could have caused the injuries alleged. DATED: By: Daniel A. Rayfield OSB #064790 SUBMITTED BY: Daniel A. Rayfield OSB #064790 PO Box 946 Albany, OR 97321 (541) 928-9147-Office (541) 928-3621-Fax dan@oregonautolaw.com Page 8.