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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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 CIVIL CASE THAT IS OVER THIRTY (30) YEARS OLD IS SUBSTANTIALLY OUTWEIGHED BY PREJUDICE
(Assigned to Honorable Roslyn O. Silver)

CHASSIS, LLC'S RESPONSE TO

DEFENDANT WORKHORSE CUSTOM

Defendants.

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 at trial on the issue of prior civil cases involving the
20 witness. The only witness that Workhorse intends to impeach with evidence of a
21 prior civil case is Plaintiff's expert, William Trimmell, who perjured himself in a prior
22 deposition about his prior lawsuit. Workhorse's position is more fully set forth in the
23 accompanying memorandum of points and authority. MEMORANDUM OF POINTS AND AUTHORITIES 24
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FACTUAL BACKGROUND

26 Plaintiff intends to call as her expert at trial William Trimmell, who will offer
27 opinions about alleged defects with the chassis portion of the motor home. Plaintiff

?R will likely attempt to portray Mr. Trimmell as an "independent expert" in order
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increase the credibility of his opinions. In that situation, Mr. Trimmell's overall

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credibility and trustworthiness with the jury will become highly relevant and central
to whether the jury accepts his opinions.

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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 District

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Court for the Northern District of Georgia. See relevant portions of the transcript,
attached as Exhibit 1. During that deposition, Mr. Trimmell acknowledged for the
first time had previously been a party to a civil

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lawsuit wherein the plaintiffs alleged

that Mr. Trimmell was negligent when he was involved in a motor vehicle accident

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while driving drunk. Mr. Trimmell had previously stated under oath that he had
never been a party to a civil

lawsuit. This instant act of perjury goes to the heart of

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his credibility as a witness. When he had given sworn testimony in other
depositions involving Workhorse, he denied the answer to the question of prior civil

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lawsuits, and finally, when confronted with evidence of his prior perjury, he
confessed that he had been a party to a civil lawsuit ( and to a criminal case with
his credit card fraud conviction, which is the subject of a separate motion in limine.

During this case, Plaintiff has never disclosed any of Mr. Trimmell's prior
lawsuits or criminal conviction. Workhorse discovered Mr. Trimmell's prior drunk

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driving lawsuit through its own research and then subsequently confronted Mr.
Trimmell with this evidence during his sworn deposition testimony in the Mize case.

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On June 7, 2006, shortly after Workhorse's Arizona counsel obtained a copy of Mr.

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Trimmell's deposition transcript from the Mize case, he informed Plaintiff's counsel

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that he intended to question Mr. Trimmell about his prior criminal conviction at the

trial in the Sennett matter. See Correspondence of David Williams dated June 7,
2006, attached as Exhibit 2.

As more fully discussed below, Mr. Trimmell's prior lawsuit and the fact that
he perjured himself while providing sworn deposition testimony is admissible under
Fed. R. Evid. 608(b) 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.
i.

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MR. TRIMMELL'S TESTIMONY ABOUT HIS PRIOR LAWSUITS IS
ADMISSIBLE UNDER RULE 608(b) AND RULE 801 (d)(1 )(A).

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Rule 608(b) provides that:

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Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other
than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if

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probative of truthfulness or untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

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In Monticello v. WinnebaQo Industries. et. ai, Mr. Trimmell was designated
as an expert on behalf of the plaintiff and provided deposition testimony. See

William Trimmell in Monticello v. WinnebaQo Industries and Workhorse Custom
Chassis, Civil Action No. 1-04-CV-0041-RWS, United States District Court for the
Northern District of Georgia, p. 99: 1-25, attached as Exhibit 3. In the deposition, he

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was specifically asked if he had ever been a party to a lawsuit. He testified that he
had been retained as an expert in various motor home cases, and had never been a
party to any lawsuit. As a follow-up question, Mr. Trimmell was specifically asked

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"Have you ever been a plaintiff or defendant in any other lawsuit yourself?" Id. Mr.

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Trimmell stated, "No sir." lg. at 99: 19-20.
During that questioning, Mr. Trimmell perjured himself. Mr. Trimmell had in
fact been involved in a prior civil

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lawsuit as a defendant wherein the estate of John

Thomas Conner alleged that Mr. Trimmell was drunk when operating a motor
vehicle and struck and killed Mr. Conner in a motor vehicle accident. See Appellate

Court decision in Betty Smith v. William Trimmell, 328 N.E.2d 45 (IIi. App. 1975) (A

copy of the written opinion is attached as the Court's courtesy copy). Mr. Trimmell
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was found negligent in that case and a jury returned a verdict against him in the
amount of $18,000. Mr. Trimmell was specifically asked whether he was a party to
a lawsuit, and he answered no. Mr. Trimmell's perjury in the Monticello case about

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his prior lawsuits is directly relevant of his character for truthfulness. Mr. Trimmell
was confronted with this perjured testimony from the Monticello case, when he was

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questioned in the Mize case. He finally acknowledged his prior civil lawsuit.
Exhibit 1, p. 207:3-211: 17.

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Under Rule 608, the Court, in its discretion, may admit evidence of both the
civil lawsuit and the fact that Mr. Trimmell offered perjured testimony because they

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are probative and relevant to the issue of his truthfulness. Here there can be no
doubt when a witness is asked a straightforward question, such has "have you been

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a plaintiff or defendant in any other lawsuit yourself," and the witness says no to the

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question, and it is later determined that the witness was a party to at least two other

lawsuits, then his character for truthfulness is at issue. Here the evidence certainly
falls within the parameters of Rule 608 and is admissible.

Further, the false testimony about Mr. Trimmell's prior civil lawsuit 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

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801 (d)(1 )(A).

In her motion, the only legal argument that Plaintiff makes is to have the
Court exclude Mr. Trimmell's prior civil litigation history under the balancing test of

Fed. R. Evid. 403. As part of the basis for her motion, Plaintiff claims that
Workhorse has never provided notice to Plaintiff of its intention to cross-examine
Mr. Trimmell about his prior litigation. First, there is no evidentiary requirement that
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requires notification of impeachment evidence, other than Rule 609 (which
concerns criminal convictions). Second, contrary to Plaintiff's representations in her motion, Workhorse did provide advance notice of its intent to question Mr. Trimmell

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on his prior civil litigation in correspondence to Plaintiff's counsel dated June on his
credit card fraud conviction.1 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. In her motion, Plaintiff
provides no basis for excluding the prior lawsuit other than it occurred "thirty years
ago." Even though it is removed in time, the probative value of this prior litigation is
enhanced due to Mr. Trimmell's perjury. During prior trials between Workhorse and

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Plaintiff's counsel's law firm, Plaintiff's counsel went to great lengths to portray Mr.

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Trimmell as an "independent" and "unbiased" expert to give his opinions about
Plaintiff's motor home. Conversely, in previous trials, Plaintiff's counsel also
argued numerous times that all of the witnesses called by Workhorse were "biased

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agents" of Workhorse that falsified the repair records in order to minimize repairs
under the limited warranty. Plaintiff's attempt to put Mr. Trimmell in an ivory tower
as an "independent" appraiser and expert opens the door for Workhorse to

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challenge his credibility for truthfulness, which his perjured testimony bears upon.
The Court may ask why the civil

lawsuit itself should be presented to the jury,

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even if the perjured testimony is relevant and admissible. The prior civil lawsuit is

probative in that it explains the context of why Mr. Trimmell would lie under oath.

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Without knowing the full extent of his past civil litigation, the jury may not fully
appreciate the basis for Mr. Trimmell's perjured testimony and view his perjury as

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1 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 depositions in the Mize case and the Monticello case.

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an oversight while being questioned. If only the perjured testimony were presented
to the jury, then Mr. Trimmell can simply explain away his perjury as an answer to a
misleading or confusing question. To rebut the "oversight" argument, the jury should

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know the basis for Mr. Trimmell's perjury, which the prior civil lawsuit explains.

Knowing the specific nature of Mr. Trimmell's civil lawsuit, the jury could well
conclude that this was not a person forgetting about a parking ticket or some
random civil lawsuit, but instead a person that wanted to hide that fact that he was
sued for killing someone while driving drunk.

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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 the 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"
is central to the jury's acceptance of the expert's opinion testimony. Therefore,

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because the probative value of being able to impeach his credibility substantially

outweighs any minimal prejudicial effect, evidence of Mr. Trimmell's prior civil
litigation and his perjury are relevant and admissible under Rule 403.

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iv.

CONCLUSION

Based upon the arguments set forth above, Workhorse requests that the
Court allow it to cross-examine Mr. Trimmell about his prior civil litigation and prior
inconsistent testimony.

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

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document to be electronically transmitted to the Clerk's Office using the CMIECF

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

6 Jennifer Basola

7 KROHN & MOSS, L TD

111 W Monroe, Suite 711
8 Phoenix, AZ 85003

9 Attorney for Plaintiff
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sl Judy Kaelin

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