Free Motion in Limine - District Court of Connecticut - Connecticut

Case 3:02-cv-01219-JBA

Document 165

Filed 11/01/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

In re Jeep Wrangler Class Action Angela Phelan, Administratrix of the Estate of Christopher Phelan, Class Member, and Individually Plaintiffs, v. DaimlerChrysler Corporation Defendant.

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Civil No. 3:02 CV 1219 JBA

November 1, 2004

DEFENDANT DAIMLERCHRYSLER CORPORATION'S MOTION IN LIMINE TO PRECLUDE TESTIMONY BY MICHAEL WOGALTER

Defendant DaimlerChrysler Corporation ("DaimlerChrysler" or "defendant") submits this Motion in Limine to Preclude Testimony by Michael Wogalter.

In support of its motion, DaimlerChrysler states that:

1.

Wogalter may not testify regarding the subject vehicle's on-product labeling

because his deposition testimony shows that he lacks any factual basis on which to testify on these matters. See Fed. R. Civ. P. 702(1). Wogalter admitted that he had never inspected the subject vehicle and that with a single exception he had never read any of the on-product labeling on the vehicle or supplied by the manufacturer. Furthermore, due to the loss or destruction of the vehicle's hardtop while the vehicle was in plaintiff's control, plaintiff may not present testimony regarding the adequacy of on-product labeling on the hardtop. Plaintiff's failure to properly

ORAL ARGUMENT IS REQUESTED

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preserve the vehicle may have made it impossible to determine if a warning label was present. Given the loss or destruction by plaintiff's counsel of the vehicle's hardtop, plaintiff may not offer any opinions as to the adequacy of on-product labeling on the vehicle's hardtop through Wogalter or any other witness or by any other means.

2.

Wogalter may not testify about Christopher Phelan's knowledge of the contents of

the subject vehicle's on-product labeling or the operator's manual for the subject model vehicle, as he has no factual foundation for such testimony. The only warning label of which he was aware was one he understood from plaintiff's counsel to have been located on the driver's visor. He did not know if the original purchaser or Christopher Phelan had removed any decals from the vehicle prior to the accident. He had no information as to whether Christopher Phelan had read the owner's manual, or any of the on-product warning labels. He knew little or nothing about the type or content of the information Christopher Phelan had before he purchased the vehicle. In the absence of such information, Wogalter cannot be permitted to testify about Christopher Phelan's knowledge of the on-product warning labels or the operator's manual for the subject vehicle.

3.

Wogalter's testimony must be limited to the warnings issues on which he is

qualified to testify. Plaintiff has designated Wogalter to testify on human factors and warnings issues only. The defendant anticipates that plaintiff may try to use Wogalter's trial testimony as an indirect means to admit evidence that would support plaintiff's claims regarding alleged product defects that have nothing to do with the adequacy of available warnings and of injury causation. Based on his deposition testimony in this case, Wogalter has no background in the design of production automobiles and has never given testimony on the design of a production

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automobile, other than on warnings issues. He has never designed an automobile of any kind, and has never designed a warning that has appeared on a production automobile. Wogalter does not hold himself out as an expert in accident reconstruction and admitted that he has no background in mechanical engineering. Additionally, he does not claim any expertise in

occupant kinematics. Other than warnings, Wogalter lacks the qualifications to testify in any subject area relevant to this case. Therefore, Wogalter should not be allowed to testify on any other aspect of the subject vehicle's design, the happening of accident, the movements of the occupant's body in the course of the accident or the causes of the decedent's injuries.

4.

Wogalter may not testify on the contents of any proposed warnings or potential

wording of warning labels where plaintiff has failed to provide any such materials to the defendant. Defense counsel specifically asked Wogalter in deposition if he intended to "draft a proposed warning that [he] would have placed on the vehicle in this case for [his] trial testimony." Wogalter responded that he did not anticipate doing that, but indicated that he

might present a "potential set of wording or warning label. . . an exemplar with some wording." As of the date of this motion, plaintiff has not produced any such materials. Given the late date, the defendant will not have an adequate opportunity to review any proposed warnings or potential wording of warning labels so that it can prepare an appropriate response. Wogalter may not, therefore present any such materials at trial, or testify regarding proposed warnings or potential wording of warning labels.

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WHEREFORE, defendant DaimlerChrysler Corporation respectfully requests that the Court allow its Motion in Limine to Preclude Testimony by Michael Wogalter.

Defendant DaimlerChrysler Corporation incorporates the attached memorandum of law in support of its motion.

Defendant, DaimlerChrysler Corporation By its attorneys,

____________/s/______________________ Peter M. Durney (Fed. Bar ID# CT14569) [email protected] James P. Kerr (Fed. Bar ID# CT24142) [email protected] CORNELL & GOLLUB 75 Federal Street Boston, MA 02110 (617) 482-8100 (617) 482-3917 Fax

CERTIFICATE OF SERVICE I, Peter M. Durney, attorney for defendant DaimlerChrysler Corporation, hereby certify that on this 1st day of November, 2004, a true and correct copy of the foregoing Defendant DaimlerChrysler Corporation's Motion in Limine to Preclude Testimony by Michael Wogalter, was served by hand, directed to: Steven E. Arnold, Esq. STANGER & ARNOLD, LLP 29 South Main Street, Suite 325 West Hartford, Connecticut 06107 Attorney for Plaintiff by first class mail postage prepaid, directed to:

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Mr. Christopher Miller Inmate #266075 c/o Willard-Cybulski Correctional Institution Third-Party Defendant Rikki Timbo, Inc. Agent for Service: Richard W. Tomc, Esq. 49 Main Street Middletown, CT 06457 Third-party defendant Maurice Samuelian Kathleen Samuelian 52 Mallard Avenue East Hampton, CT 06424 Third-party defendant

_________/s/________________________ Peter M. Durney

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