Free Trial Brief - District Court of Colorado - Colorado

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00332-REB-CBS SCOTT HILL, Individually; THE ESTATE OF APRIL HILL, Scott Hill, Personal Representative; JOHN PAUL, Conservator for the Estate of Hope Paul, a minor; SCOTT HILL, Conservator for the Estate of Katelyn Hill, a minor; GARRY SCOGGINS and DIANA NORDIN, Co-Conservators of the Estate of Dennis Scoggins, a minor, Plaintiffs, v. WESTERN DOOR, a Division of LUMBER PRODUCTS, INC., a Foreign Corporation, d/b/a in Colorado; and CRISTOBAL BONILLA, Defendants. ________________________________________________________________________ DEFENDANTS' TRIAL PREPARATION CONFERENCE ISSUES AND SUPPLEMENTAL TRIAL BRIEF ON EVIDENTIARY ISSUES ________________________________________________________________________ Defendants, Lumber Products and Cristobal Bonilla, through their attorneys, Montgomery Little & McGrew, P.C., submit their trial preparation conference issues to be addressed as follows: BACKGROUND A trial preparation conference is scheduled for November 18, 2005, at 10:00 a.m. The Court's Trial Preparation Conference Order dated June 24, 2004, provides that the following issues will be addressed at this conference: A. Witness List Form: Defendants will submit their Will Call and

May Call witness lists at the trial preparation conference.

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 2 of 9

B.

Jury Instructions: Jury instructions have been discussed between

the parties. Defendants have submitted their stipulated, competing and non-stipulated jury instructions to the Court on CD pursuant to the Court's Order. C. Voir Dire Questions: Defendants'counsel is prepared to discuss

voir dire questions. The Court's January 1, 2005 Practice Standards for Civil Actions provides that these questions will be submitted to the Court five days prior to trial (Page 11), and Defendants will be submitting proposed voir dire. D. Jury Selection Process: A juror questionnaire may be helpful

depending on the evidentiary scope of the trial, and for voir dire efficiencies. E. Identification of Persons Permitted to be Seated at Counsel

Table: Kevin Kuhn and John Riley, attorneys for Lumber Products and Cristobal Bonilla, will be present at trial. Defendant Cristobal Bonilla will be present. A representative or representatives of Lumber Products will be present at trial, including Craig Hall and/or Lacey Adams. F. Pronunciation of Names: Mr. Bonilla' two "ll' are s s"

pronounced as a "y;" no others are problematic. G. Names or Monikers that May be Used When Referring to a

Party or Witness: Customary trial protocol (no first names, appropriate titles before surnames), and the Court' directives should control. s H. Identification of Will Call and May Call Witnesses: Defendants

will submit their list of Will Call and May Call witnesses at the Trial Preparation Conference.

-2-

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 3 of 9

I.

Use of Deposition Testimony: Robert Winslow, a witness to the

accident, was deposed, upon plaintiffs' notice, at a trial preservation videotape deposition on September 12, 2005 in Houston, Texas. Defendants have submitted Mr. Winslow's proposed deposition excerpt trial testimony to Plaintiffs counsel. Mr. Winslow's deposition excerpts would be shown by DVD. J. K. Use of Video Depositions: See above. Allocation of Trial Time: Defendants reasonably believe they

should begin presentation of evidence on the 7th day of trial, which is December 14, 2005, presuming that Fridays will not be trial days. This is contingent on when the plaintiffs "rest." Defendants reasonably believe, aside from the variability and exigencies of any trial, that it will take approximately a week to present their case, depending on what the plaintiffs'case is, and the scope of the evidence. L. Juror Trial Exhibits: If the Court permits, juror exhibit

notebooks may be helpful. Exhibits can also be shown to the jury and the witnesses on the Elmo system. At the close of trial, exhibits accepted into evidence can be provided to the jury. M. Timing of Publication of Trial Exhibits: A number of exhibits

have been stipulated. Non-stipulated exhibits should be published to the jury only after the Court allows those exhibits into evidence. N. Anticipated Evidentiary Issues: Driving record Defendants previously filed a motion for bifurcation regarding the negligent hiring claim, and the Court has issued a written ruling. Defendants will not restate

-3-

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 4 of 9

arguments already made. However, defendants continue to object to plaintiffs attempting to "prove" their negligence claim by efforts to paint both defendants with evidence not relevant or causal to the straightforward negligence claim (including but not limited to any evidence of negligent hiring, training or supervision, or Mr. Bonilla' "traffic s tickets"). The applicable rules of evidence include F.R.E. 401 and 402 (relevant and irrelevant evidence) F.R.E. 403 (prejudice, confusion, or waste of time); F.R.E. 404(b) (impermissible use of prior bad acts). Other evidentiary rules implicated are F.R.E. 405 (here, an improper method of attempting to prove character on the part of both defendants); F.R.E. 608 (improper use of evidence of character and conduct of the witness); and, F.R.E. 609 (impeachment by conviction of crime). When a federal court' jurisdiction is based upon diversity, the federal court s applies the state substantive law and federal procedural law. Gilbert v. Cosco Inc., 989 F.2d 399 (10th Cir. 1993). Under the Federal Rules of Evidence 404(b), evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes. The Supreme Court has set out four procedural safeguards that apply to admission of evidence under FRE 404(b). See Huddleston v. United States, 108 S. Ct. 1496 (1988); United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997). Such evidence is admissible only if: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant;

-4-

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 5 of 9

(3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to FRE 105, the trial court shall, upon request, instruct the jury that the evidence of similar acts is to be considered only for the proper purpose for which it was admitted. Prior convictions are only admissible under FRE 609 for the purpose of attacking the credibility of a witness. FRE 609; Gust v. Jones, 162 F.3d 587 (10th Cir. 1998). FRE 609 provides only two alternatives for admitting prior convictions. Id. The crime must either: 1) involve dishonesty or false statements; or 2) in addition to applying the balancing test of FRE 403, that the danger of unfair prejudice must be substantially outweighed by the probative value of the evidence, the conviction must have been for a crime that was punishable by death or imprisonment of excess of one year. See Id. Under Utah Rules of Evidence 404 and 609, past criminal convictions are only admissible for the limited purpose of attacking the credibility of a defendant and should not be used as substantive evidence of guilt. State v. Emmett, 839 P.2d 781, 785 (Utah 1992). Colorado has adopted a four part test to determine the admissibility of "other acts" under 404(b). See Hock v. New York Life, 876 P.2d 1242, 1250, (Colo. 1994). Such evidence is admissible only if all of these elements are present: (1) the evidence relates to a material fact; (2) the evidence has logical relevance in that the evidence adds to the probability that the material fact is true;

-5-

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 6 of 9

(3) the logical relevance of the evidence does not depend on an intermediate inference that the litigant has a bad character, which would be employed to support a further inference that the litigant acted in conformity with his bad character; and (4) the probative value of the evidence is not substantially outweighed by the evidence' prejudicial impact. Id. s Where "other acts" are admitted to show a common

plan, scheme, or design, the evidence is admissible where it involves a similar transaction. Id. The driving record or other issues as to the negligent hiring, supervision and training claim, fail to satisfy admissibility criteria under the Federal Rules of Evidence as they do not relate to a material act; there is no relevance that the evidence adds to the probability that the material fact is true; the evidence implies that the driver has a bad character; and, there is prejudicial impact not outweighed by any probative value. There is no similar transaction which would show a common plan, scheme or design. The historical fact of traffic offenses by Mr. Bonilla does not establish relevance to this July 25, 2002 accident on Highway 666, under F.R.E. 402 (irrelevant), and F.R.E. 403 (prejudicial), and an attempt to show prior bad acts is violative of the above cited rules of evidence. Plaintiffs may attempt to show driving records after the date of the accident which is irrelevant (F.R.E. 402), and prejudicial (F.R.E. 403). Criminal charges Plaintiffs may attempt to show prior criminal charges, arrests and a misdemeanor criminal conviction involving Mr. Bonilla. F.R.E. 609 and C.R.S. §13-90-101, prevent the introduction of evidence of any criminal activity except felonies. Utah does not have

-6-

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 7 of 9

a statue on the introduction of evidence of criminal convictions, but its rules of evidence track F.R.E. 609 which prevent the introduction of evidence of criminal convictions unless the crime is punishable by death or 1 year in jail. Further, these criminal charges, arrests and convictions are irrelevant (F.R.E. 402), prejudicial (F.R.E. 403), and an attempt to show prior bad acts (F.R.E. 404(b), as well as the other above-listed applicable Federal Rules of Evidence. No negligent hiring claim exists when respondeat superior admitted Finally, once an employer admits liability under respondeat superior (as here), the majority rule is that plaintiff may not proceed against the employer on another theory of implied liability such as negligent entrustment and negligent hiring. Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924, 930, 26 Ill. Dec. 459, 770 N.E. 2nd 1155, 1160 (2002); Durben v. American Materials, Inc, 503 S.E. 2d 618 (Ga. Ct of Appeals, 1998), McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995) and Rothwell v. Werner, 859 F. Supp. 470, 474 (D. Kan. 1994)(plaintiff cannot proceed under a negligent hiring claim if defendant admits respondeat superior because the only issue is whether defendant' s negligence caused the injury). Colorado courts would likely follow this majority rule given the Colorado Supreme Court' characterization and distinguishment of the tort of s negligent hiring versus respondeat superior. See Connes v. Molalla Transport Co., 831 P.2d 1316 (Colo. 1992), at 1320. Interestingly, Connes held there was no legal duty to investigate the criminal background of the truck driver, despite the truck driver' s commission of a sexual assault on a motel clerk while driving a truck for his company. O. Cautionary or Limiting Instructions: Defendants respectfully

submit that limiting instructions regarding the evidence related to Cristobal Bonilla's

-7-

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 8 of 9

driving record and the negligent hiring claim will be inadequate to protect the "guilt by association" evidence plaintiffs want to pursue in the guise of their negligent hiring claim, much less "unring the bell." P. Trial Briefs: Defendants previously submitted its trial brief on the

issue that the plaintiffs'negligent hiring claim is not tenable given the Defendants admission that Mr. Bonilla was within the course and scope of his employment and have admitted respondeat superior. Without plaintiffs negligent hiring claim, plaintiffs'efforts to try the negligence case on the guise of prior traffic tickets and negligence in hiring, training or supervision claim, does much to prejudice these defendants on causally infirm and non-relevant, though prejudicial, evidence. Defendants can address any other issues that the Court requires to be analyzed. Respectfully submitted November 17, 2005.

s/John R. Riley___________________________ John R. Riley Kevin J. Kuhn Attorneys for Defendants Western Door and Cristobal Bonilla Montgomery Little & McGrew, P.C. 5445 DTC Parkway, Suite 800 Greenwood Village, CO 80111 Phone: (303) 773-8100 Fax: (303) 220-0412 [email protected]

-8-

Case 1:04-cv-00332-REB-CBS

Document 104

Filed 11/17/2005

Page 9 of 9

CERTIFICATE OF SERVICE I hereby certify that on November 17, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses [email protected] [email protected] [email protected]

s/John R. Riley___________________________ John R. Riley Kevin J. Kuhn Attorneys for Defendants Western Door and Cristobal Bonilla Montgomery Little & McGrew, P.C. 5445 DTC Parkway, Suite 800 Greenwood Village, CO 80111 Phone: (303) 773-8100 Fax: (303) 220-0412 [email protected]

-9-