Free Response to Motion - District Court of Arizona - Arizona

1 Negatu Molla (Bar No. 006254)

David W. Williams (Bar No. 022764)

2 BOWMAN AND BROOKE LLP Suite 1600, Phoenix Plaza
3 2901 North Central Avenue

Phoenix, Arizona 85012-2761
4 (602) 643-2300

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Attorneys for Defendant Workhorse Custom Chassis

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UNITED STATES DISTRICT COURT
DISTRICT OF PHOENIX

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LANE SENNETT,
Plaintiff,
v.

No. CV04 0161 PHX ROS

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CHASSIS, LLC'S RESPONSE TO

DEFENDANT WORKHORSE CUSTOM

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FLEETWOOD MOTOR HOMES OF CALIFORNIA, INC. and WORKHORSE CUSTOM CHASSIS;
INC.,

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PLAINTIFF'S MOTION IN LIMINE RE THE PROBATIVE VALUE OF A CRIMINAL CONVICTION THAT IS OVER TEN (10) YEARS OLD IS SUBSTÁNTIALL Y OUTWEIGHED BY

Defendants.

PREJUDICE

(Assigned to Honorable Roslyn O. Silver)

Workhorse Custom Chassis, LLC ("Workhorse") hereby responds to

18 Plaintiff's motion in limine to preclude Workhorse from presenting evidence of or

19 impeaching any witnesses are trial on the issue of a prior conviction. The only

20 witness that Workhorse intends to impeach with evidence of a prior criminal
21 conviction is Plaintiff's expert, William Trimmell. Workhorse's position is more fully
22 set forth in the accompanying memorandum of points and authority. MEMORANDUM OF POINTS AND AUTHORITIES 23
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i.

BACKGROUND

Plaintiff has disclosed William Trimmell as her expert in this case. Mr.

26 Trimmell intends to offer opinions about alleged defects about the chassis portion
27 of the motor home. Plaintiff will likely claim that Mr. Trimmell is an "independent
?R expert" in order increase the credibility of his opinions. Therefore, Mr. Trimmell's
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overall credibility with the jury and his trustworthiness are relevant and key issues
for the jury to address.

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On April 21, 2006, Mr. Trimmell was deposed in the matter of Larry and
Betty Mize v. WinnebaQo Industries. et. ai, Case No.1 :05-cv-1513, United States

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District Court for the Northern District of Georgia. See relevant portions of the
transcript, attached as Exhibit 1. During that deposition, Mr. Trimmell

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acknowledged for the first time (even though he had given numerous prior
depositions) that he has been convicted of credit card fraud and had previously
been a party to a civil lawsuit wherein the plaintiffs alleged that Mr. Trimmell was
negligent when he was involved in a motor vehicle accident while driving drunk.

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During this case, Plaintiff has never disclosed any criminal convictions for
Mr. Trimmell or any other witness. It was only through Workhorse's fortuitous

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questioning in another legal matter that this information was discovered. On June

7, 2006, shortly after Workhorse's Arizona counsel obtained a copy of Mr.
Trimmell's deposition transcript from the Mize case, he informed Plaintiff's counsel

that he intended to question Mr. Trimmell about his prior criminal conviction at the
trial in the Sennett matter, and even provided citation to the specific portions of the
Mize transcript that discussed the credit card fraud conviction. See

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Correspondence of David Williams dated June 7,2006, attached as Exhibit 2.

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As more fully discussed below, Mr. Trimmell's credit card conviction is
relevant to Mr. Trimmell's character for truthfulness and is admissible under Fed.
R. Evid. 608(b) and 609(a)(2) and as an inconsistent statement under Fed. R. Evid.

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801 (d)(1 )(A). Therefore, Workhorse requests that the Court deny Plaintiff's motion
in limine.
II.

MR. TRIMMELL'S FRAUD CONVICTION IS ADMISSIBLE UNDER RULE 609(a)(2).

Rule 609(a)(2) provides that:

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any witness has been convicted of a crime shall be admitted if it
involved dishonesty or false statement, regardless of the punishment.

For the purpose of attacking the credibility of a witness... evidence that

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The limitation on the admissibility of a criminal conviction involving dishonesty
or false statement is found in Rule 609(b), which states:

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more than ten years has elapsed since the date of the conviction or of
the release of the witness from the confinement imposed for that

Evidence of a conviction under this rule is not admissible if a period of

conviction, whichever is the later date, unless the court determines, in
the interests of justice, that the probative value of the conviction

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supported by specific facts and circumstances substantially outweighs

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years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

its prejudicial effect. However, evidence of a conviction more than 10

In his deposition in the Mize case, Mr. Trimmell admitted that he had been
convicted of credit card fraud in connection with his purchase of truck fueL. Exhibit

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1, pp. 122:22-125:6. He claimed that the conviction occurred over 30 years ago.
Id.

The evidence of Mr. Trimmell's criminal conviction is admissible if
Workhorse provided Plaintiff with advance notice of its intent to provide such
evidence and if the probative value of the conviction substantially outweighs its

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prejudicial effect. First, contrary to Plaintiff's representations in her motion,
Workhorse did provide advance notice of its intent to question Mr. Trimmell on his
credit card fraud conviction. 2 See Exhibit 2.

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The probative value of Mr. Trimmell's fraud conviction substantially
outweighs any minimal prejudicial effect it may have. During prior trials between
Workhorse and Plaintiff's counsel's law firm, Plaintiff's counsel went to great
lengths to portray Mr. Trimmell as an "independent" and "unbiased" expert to give

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his opinions about Plaintiff's motor home. Conversely, in previous trials, Plaintiff's

2 Arguably, Plaintiff's counsel's law firm has known of Mr. Trimmell's prior criminal conviction. Mr. Trimmell has testified at least 17 times on behalf of Plaintiff's

counsel's law firm in warranty lawsuits. In fact, Plaintiff's counsel's law firm
defended Mr. Trimmell's deposition in the Mize case on April 21, 2006.
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counsel also argued numerous times that all of the witnesses called by Workhorse

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were "biased agents" of Workhorse that falsified the repair records in order to
minimize repairs under the limited warranty. Plaintiff's attempt to put Mr. Trimmell

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in an ivory tower as an "independent" appraiser and expert opens the door for
Workhorse to challenge his credibility for truthfulness, which the credit card
conviction bears upon.
Mr. Trimmell's credibility is even more at issue that than the average lay
witness because he is using his credibility as support for his opinions to the jury.

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The essence of testifying as an expert is that because subject matter of the
expert's testimony is outside of the purview of the average lay juror, the expert is
asking the jury to "trust" the expert and his opinions. The expert's "trustworthiness"

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is central to the jury's acceptance of the expert's opinion testimony. Therefore,
because the probative value of being able to impeach his credibility substantially

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outweighs any minimal prejudicial effect, evidence of Mr. Trimmell's credit card
conviction is relevant and admissible under Rule 609(a)(2).
II.

MR. TRIMMELL'S TESTIMONY ABOUT HIS CREDIT CARD CONVICTION IS ADMISSIBLE UNDER RULE 801 (d)(1 )(A). In Monticello v. WinnebaQo Industries and Workhorse Custom Chassis, Mr.

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Trimmell was designated as an expert on behalf of the plaintiff and provided
deposition testimony and offered opinions against Workhorse. In that deposition,

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he was specifically asked if he had ever been a party to a lawsuit. See William
Trimmell in Monticello v. WinnebaQo Industries and Workhorse, Civil Action No. 1-

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04-CV-0041-RWS, United States District Court for the Northern District of Georgia

p. 99: 1-25, attached as Exhibit 3. He testified that he had been retained as an
expert in various motor home cases, and had never been a party to any lawsuit. lg.

As a follow-up question, Mr. Trimmell was specifically asked "Have you ever been

a plaintiff or defendant in any other lawsuit yourself?" lg. Mr. Trimmell stated, "No
sir." lg. at pp. 99: 19-20.

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During that questioning, Mr. Trimmell perjured himself. Mr. Trimmell had in

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fact been involved in at least two prior lawsuits-one involving the credit card

conviction and another civil suit (this separate civil suit is addressed in
Workhorse's response to Plaintiff's motion in limine to preclude evidence of civil

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lawsuits). Mr. Trimmell was specifically asked whether he was a party to a lawsuit,
and he answered no, when in fact he now admitted in the Mize case that he was a

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party to a lawsuit-the one involving his credit card fraud conviction.

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The false testimony about Mr. Trimmell's credit card convictions is
admissible under Rule 801 ((d)(1 )(A) as a prior inconsistent statement. In two

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separate depositions he offered completely contradictory testimony, which is
essence of a prior inconsistent statement. In the Monticello deposition, he failed to
answer the question truthfully about whether he had been a party to a lawsuit and it

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is obviously inconsistent with his testimony in the Mize case. Therefore, Mr.
Trimmell's inconsistent testimony about his prior lawsuits is admissible under

801 (d)(1 )(A).

iv. CONCLUSION
Based upon the arguments set forth above, Workhorse requests that the
Court allow it to cross-examine Mr. Trimmell about his credit card fraud conviction
and prior testimony about his past lawsuits.
RESPECTFULLY SUBMITTED this 15th day of September, 2006.
BOWMAN AND BROOKE LLP

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By: Isl David W. Williams
Negatu Molla

David W. Williams
2901 North Central Avenue

Suite 1600, Phoenix Plaza

Phoenix, Arizona 85012-2761
Attorneys for Defendant

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1 CERTIFICATE OF SERVICE
2 I hereby certify that on the 15th day of September, 2006 I caused the

3 attached document to be electronically transmitted to the Clerk's Office using the

4 CMIECF System for filing and transmittal of a Notice of Electronic Filing to the
5 following CMIECF registrants:
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Jennifer Basola

7 KROHN & MOSS, L TD
8 111 W Monroe, Suite 711

Phoenix, AZ 85003 9 Attorney for Plaintiff
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sl Judy Kaelin

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