OR\G\NAL

1 Robert J. Nelson (State Bar No. 132797) Scott P. Nealey (State Bar No. 193062)

2 Matthew S. Da Vega (State Bar No. 195433)

LlEFF, CABRASER, HEIlVIANN & BERNSTEIN, UP

3 Embarcadero Center West 275 Battery Street, 30th Floor

4 San Francisco, CA 94111-3339 Telephone: (415) 956-1000

5 Facsimile: (415) 956-1008

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

6 Attorneys for Plaintiffs

[Additional Counsel on Signature Page]

7

8 9

10

11 ADRIANA MRAZ, ESTATE OF RICHARD MRAZ; and minor plaintiffs

12 ADDISON :MRAZ, JOE LOPEZ, ROY LOPEZ, through their Guardian Ad Litem

13 Adrianna Mraz,

14 Plaintiffs,

15 v,

16

DAIMLERCHRYSLER CORPORATION; AMERICAN PRESIDENT LINES LTD.; CERRITOS DODGE and DOES 2-100, inclusively.

17

18 19

Defendants.

20

September 11, 2006 9:00a.m.

45

Honorable Mel Recana September 11, 2006

FILED

LOS ANG~LES SUPERIOR COUR

AUG 2 8 2ans

Case No. BC 332487' .

Date Action Filed: April 26, 2005

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PLAINTIFFS' MOTION IN LIMINE NO.5 TO EXCLUDE EVIDENCE THAT THE ·PURPORTED ''FIX'' WOULD HAVE PREVENTED THE ACCIDENT IN QUESTION

.IBY FAX"

21 22

Plaintiffs hereby move this Court for an Order precluding defendant DaimlerChrysler ("defendant"), defendant's witnesses, and defendants' counsel from referring to,

Date:

Time:

Dept:

Judge:

Trial Date:

interrogating any witness concerning, commenting on, or attempting to introduce evidence of, and from otherwise mentioning or suggesting to the jury:

That the change from a steel to an aluminum manual valve (the "fix") changed, modified, or altered the vehicle's ability to be placed into ''false park"; that the fix would have prevented the accident; that any evidence shows the "flx" would have affected

28

the accident; and/or that it was negligent for APL to have not had the "fix" installed.

560421.1

PLAINTIFFS' MOTION IN LIMINB #5 (PURPORTED EFFECf OFTIiE "FIX")

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1 The motion is based upon the grounds that the evidence is irrelevant, immaterial,

2 prejudicial, and hearsay (to the extent such evidence is in the form of texts or statements by

3 parties other than DaimlerChrysler). The motion is based on the Court's authority to exclude

4 evidence that is irrelevant [Evidence Code Section 350] or misleading, confusing or unduly

5 prejudicial [Evidence Code Section 352], as well as leading cases. People v. Crow (1994) 28

6 Cal.App.4th 440, 449.

7 This motion is based on the attached Declaration and the accompanying

8 memorandum of points and authorities, on the papers and records on file herein, and on such oral

9 and documentary evidence as may be presented at the hearing of this motion.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION AND FACTUAL BACKGROUND

On April 13, 2004, Mr. Richard Mraz (38 years old and married father of an infant

daughter, Addison Mraz - age 1, and stepfather of two teenage boys, Joe Lopez - age 12, and Roy Lopez - age 14) while working as a marine clerk for Eagle Marine Services Ltd .• at the Port of Los Angeles, suffered fatal head injuries due to being struck and knocked to the ground when the defective 1992 Dodge Dakota work vehicle (manufactured by defendant Dairnlerflhrysler) he was driving self shifted into powered reverse after he had exited the vehicle.

Antonius Brenders headed up Daimler's investigation into the 1991-1992 Dakota which resulted in a recall in 2001. According to Mr. Brenders, the problem causing self shifting

was leakage through the inner manual valve when the vehicle's shift selector was left on the flat

land between park and reverse. As he explained:

We did find that as you migrated [the shift selector] from the reverse position of the vehicle, which is where the valve is completely open, and a position where it wasn't completely open and in park, [where it] should be completely closed, that you get some leakage and eventually, after you generate enough leakage and enough pressure, you actually have the transmission engage reverse gear. So it takes time.

6/15/06 Deposition of Tony Brenders at 212:1-2. Accord id. at 107:13-108:8; 180:3-181:2; 182:7-20; 185; 186:12. (Exh.T). Further, Mr. Brenders not only admitted the existence of the

56042 t.I - 2 -

f'L\INTIFFS' MOTION IN LIMINE 115 (PURPORTED EFFECT Of THE "FIX")

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defect, but he then admitted that Daimler's alleged "fix" for the defect in the form of a recall in 2001 which replaced a steel manual valve with an aluminum valve, did not prevent delayed engagement of the vehicle's reverse gear while in false park, instead it just (hypothetically) caused it to self shift into reverse more slowly when the vehicle was not fully warmed up. As Mr. Brenders testified:

Q. So if I'm understanding what you're saying, you're saying

that when you tested these vehic1es quantitatively against each other, you found that it took longer for the vehicle with a steel valve when it was warming up to self-shift into reverse than it took for an aluminum valve?

MR. HADDAD: Object to form.

THE WITNESS: Essentially, under the same conditions, that was what we found.

Q. But they would both still have a delayed engagement of

reverse?

MR. HADDAD: Object to form.

THE WITNESS: Depending on the situation that you can try to put them in, you would - in the exact same location, the aluminum valve would not bleed as much fluid as the steel valve would is what I'm telling you.

BY !vIR. NEALEY:

Q. And so everything else being equal, replacing the steel valve

with the aluminum valve would lengthen the amount of time that it would take for the vehicle to engage the reverse circuitry?

:MR. HADDAD: Object to form.

THE WITNESS: Under the exact same situation.

Id. at 188:11-189:18. Yet, as Mr. Brenders testified, Daimler was unable to show there was

actually any increased "dwell time from the fix."

Q. Did you come up with a quantitative assessment of how much extra delay in engagement of the reverse function you got from the aluminum valve versus the steel valve?

A. Because it was dependent on the location and the location

did not always give you a repeatable result, we were unable to draw that conclusion with any kind of statistical reliability.

Id. at 191:16-25. As a result, as Mr. Brenders testified, DaimIerwas unable to show any actual

560421.1

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PLAINTIFFS' MOTION IN LIMINE 115 (PURPORTED EFFECT OF 1HE "FIX")

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1

PLAINTIFFS' MOTION IN LIM INE 1t5 (PURPORTED EFFECT OF THE "FIX")

change in vehicle response due to the "fix":

2 3

Q. But you guys, DaimlerChryslet, didn't independently run

any testing?

A. No, sir, we did not.

Q. SO DaimlerChrysler has no information to either support or

contradict the notion that the switch from a steel to an aluminum valve would change the dwell time before the reverse gear is engaged when the vehicle is left in a position between park and reverse?

4

A.

We do not, to my knowledge, have that data.

Q. Do you have any data within DaimlerChrysler that would show that the rate of injuries as a result of parked or [sic] reverse incidents on the Dakota would be reduced by more than half by substituting an aluminum valve for a steel valve?

A.

I'm not familiar with that data.

Q. You know of rio data that Daimlert'hrysler has that would

show that the rate of injuries would be reduced by half or more as a result of changing the steel valve to an aluminum valve?

MR. HADDAD: Form and foundation.

THE WITNESS: I'm not aware of any such data.

Id. at 208:7-16 and 208:20~209:1O. As Mr. Brenders made dear during followup questioning by

APL's counsel.there was no possible difference from the "fix" when the vehicle was already

wannedup:

Q.

Let me see if I understand this.

The theory was that during the warm-up period of the automobile, that if you used an aluminum manual valve, that if the car was going to shift from this position between parkand reverse into reverse, it would happen quicker?

A. You would get more immediate feedback with the

aluminum valve than you would with the steel valve.

Q. Is that what Mr. Nealey was talking about dwel1 time, the

time between when the person puts the shifter into a position between park and reverse and the time that the car actually begins to go into reverse?

560421.1

A. Again, I don't want to speak to Mr. Nealey's definition, but

when we are conducting testing we did indicate - or we did find that as you migrated from the reverse position of the vehicle, which is where the valve is completely open, to a position where it wasn't

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1

PLAINTIFFS' MOTION IN LIM INE #5 (PURPORTED EFFECT OF THE "FIX")

completely open and in park, you should be completely closed, that you can get some leakage and eventually, after you generate enough leakage and enough pressure, you actually have the transmission engage reverse gear. So it takes time. So that would generate the dwell time that Mr. Nealey talked about.

Q. And just so I'm clear, the difference between the two

materials, steel and aluminum, is only significant when the car is warming up?

A The key difference between those components is they're a

different rate of thermal expansion. One expands faster with temperature than the other one does.

Q. And once the car is warmed up and they have both

expanded, then the dwell time presumably is very similar, if not the same?

A. Assuming that you're at a steady state temperature, because, as you know, temperatures heat up and cool down depending on the load, and most of that heat is carried by the fluid in the transmission. So it's not a static thing, it doesn't heat up and stay at the same temperature. Heats up and cools down, depending on the load placed on the transmission.

Id. at 214:15-216:12. As Mr. Brenders testified when asked the key question, Daimler could not

say the recall would have affected anything:

Q.. Can you say whether or not this accident would have happened if this vehicle had had the aluminum manual valve instead of the original steel valve?

A. No ability to answer that question.

Id. at 230:9-13 ..

Since there is no evidence the vehicle which killed Mr. Mraz was not fuBy warmed up, the introduction of any claims that the recall would have affected the vehicle response to disprove Daimler's liability or attempt to prove APL's contributing negligence, would be

(1) prejudicial and misleading, (2) irrelevant, (3) inadmissible, andlor (4) hearsay by implying a

standard of negligence or liability that does not exist andlor purported facts that are rank hearsay.

Nor would such arguments have a tendency to prove or disprove any disputed fact in the

determination of the action regarding Defendant's duty to produce a non-defective automobile, the breach of said duty, the cause of Plaintiffs' injuries, and the extent of those damages. Therefore, Plaintiff asks that any such evidence be excluded.

560421.1

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ARGUMENT

1 II.

2 The Court has the inherent power to grant a motion in limine to exclude "any kind

3 of evidence which could be objected to at trial, either as irrelevant or subject to discretionary

4 exclusion as unduly prejudicial." (Emphasis added). Clemens v. American Warranty Com. (1987)

5 193 Cal.App.3d 444. 451; Peat, Marwkk, Mitchell & Co. v. Superior Court (1988) 200

6 CaLApp.3d 272, 288. And, Evidence Code Section 402 allows the court to hear and determine

7 the question of the admissibility of evidence outside the presence of the jury. Mize v. Atchinson,

8 Topeka & Santa Fe Ry. Co. (1975) 46 Cal.App.3d 436, 448.

9

A.

Any Testimony Or Claim About The Fix~s Effect On The Subject Vehicle Should Be Excluded As Speculative.

10

11

As noted above, the evidence inDaimler's possession does not demonstrate any

12 13

change in vehicle performance to any reasonable certainty, and it is only hypothesized by Daimler that there would be a change in vehicle response when the vehicle was warming up. Without

14 15 16 17 18 19 20 21

laying a foundation that (1) the subject vehicle was not warmed up, (2) providing probative data

beyond that in Daimler's possession, and (3) showing that any extra delay in the self-shift would have prevented this accident, any testimony about the impact of the fix on this accident is simply speculative and not admissible. Evid. Code § 702(a) and § 800(a). "Evidence is irrelevant ... if it leads only to speculative inferences." People v. Morrison (2004) 34 Cal. 4th 698,711. Furthermore, any expert's opinion that is based on an assumption without evidencing support, or on speculation or conjecture may be excluded. Jennings v. Polomar Pomerado Health Sys .• Inc.

(2003) 114 Cal. App. 4th 1008, 1116.

22

In this case, absent a foundation being laid (and, as Mr. Brenders' admission

indicates, there is none), any discussion of the impact of the purported "fix" on the subject vehicle, or this accident, would simply confuse and likely mislead the jury.

Evidence Code Section 352 states as follows: ''The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its

admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Any attempted introduction

560421.1

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PLAINTIFFS' MOTION IN LIMINE, #5 (PURPORTED EFFEcr OF TIlE "FIX")

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PLAENTIFFS' MOTION IN UMTNE#5 (PURPORTED EFFEcr OF THE "FIX")

1 of such a claim when no evidence to support it exists should be barred.

Evidence Regarding NHTSA's Testing Of The "Fix" Should Be Barred As Hearsay.

Evidence Code Section 1200 states as follows: "(a) 'Hearsay evidence' is evidence

of a statement that was made other than by a witness, while testifying at the hearing and that is

B.

offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and cited as the hearsay rule," Evidence Code Section 225 defines a "statement" as follows: "(a) oral or written verbal expression or (b)

nonverbal conduct of a person intended by him as a substitute for oral or written verbal

expression."

Any reference, oral or written, by Defendant, its experts, or witnesses regarding any possible NlITSA determination of the effect of the steel to aluminum valve "fix" or recall to prove its effectiveness or effect on this accident is inadmissible as hearsay and would be

prejudicial to Plaintiffs.

III. CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that this Court grant its motion in limine to exclude evidence of, or any mention of the impact of the fix on this accident

or claim that APL was negligent in not having the vehicle retrofitted.

Dated: August 28, 2006

LIEFF. CAB RASER, HEIMANN & BERNSTEIN, LLP

abrice N. Vincent Scott P. Nealey Matthew S. Da Vega

LIEFF. CAB RASER. HEItvlANN & BERNSTEIN, LLP 275 Battery Street, 20th Floor

San Francisco, CA 94111-3399

Telephone: (415) 956-1000

Facsimile: (415) 956-1008

56042l.l

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PLAINTIFFS' MOTION IN LIMINE #5 (PURPORTED EFFECf OFTHE "FIX")

Charles D. Naylor (State Bar No. 62243) LAW OFFICES OF CHARLES D. NAYLOR 839 S Beacon St#311

San Pedro, CA 90731

Telephone: (310) 514-1200

Facsimile: (310) 514-1837

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Attorneys for Plaintiffs

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560421.1

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8 9 10

11 ADRIANA MRAZ, ESTATE OF RICHARD lV.IRAZ; and minor plaintiffs

12 ADDISON MRAZ, JOE LOPEZ, ROY LOPEZ, through their Guardian Ad Litem

13 Adrianna Mraz,

14 Plaintiffs,

15 v,

16 DAIMLERCHRYSLER CORPORATION; AMERICAN PRESIDENT LlNES LTD.;

17 CERRITOS DODGE and DOES 2-100, inclusively,

18

19

20 21

22

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7

DECLARATION OF scorr P. NEALEY IN SUPPORT OF MOTION IN LIMINE #5 (PURPORTED EFFECT OF TIlE "FIX")

I Fabrice Vincent (State Bar No. 160780) Scott p_ Nealey (State Bar No. 193062)

2 Matthew S. Da Vega (State Bar No_ 195433)

LJEFF, CABRASER, HEIMANN & BERNSTEIN, lLP

3 Embarcadero Center West 275 Battery Street, 30th Floor

4 San Francisco, CA 94111M3339 Telephone: (415) 956-1000

5 Facsimile: (415) 956-1008

6 Attorneys for Plaintiff

SUPEruORCOURTOFTHESTATEOFCALWO~ COUNTY OF LOS ANGELES

Defendants.

Case No. Be 332487

Date Action Filed: April 26, 2005

DECLARATION OF SCOIT P. NEALEY IN SUPPORT OF MOTION IN

LIMINE NO.5 TO EXCHANGE EVIDENCE THAT THE PURPORTED ~'FIX" WOULD HAVE PREVENTED THE ACCIDENT IN QUESTION

I, Scott P. Nealey, am a partner at the law firm of Lieff, Cabraser, Heimann

& Bernstein, LLP, and am counsel for Plaintiffs in this action. I am a member in good standing of the State Bar of California, and I am personally familiar with the matters contained in this declaration, and if called for, could testify competently thereto.

1. The specific matter alleged to be inadmissible and prejudicial include:

That the change from a steel to an aluminum manual valve (the "flx") changed, modified, or altered the vehicle's ability to be placed into "false park"; that the fix

would have prevented the accident; that any evidence shows the ''fix'' would have affected

the accident; and/or that it was negligent for APL to have not had the "fix" installed.

56042Ll

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1

2.

The subject of the motion has been discussed with opposing counsel from

2 DaimlerChrysler Barry Schrim, and that opposing counsel has refused to stipulate that such

3 matter will not be mentioned or displayed in the presence of the jury unless and until it is

4 admitted in evidence;

5

3.

Plaintiff will suffer prejudice if the motion is not granted because

6 defendant should be prevented from speculating and/or relying upon hearsay statements.

7 The foregoing is true and correct to the best of my knowledge. Executed this

8 August 28, 2006, in San Francisco, California.

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560421.1

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DECLARATION OF SCOTT P. NEALEY IN SUPPORT OF MOTION rN LIM:rNE #5 (PURPORTED EFFECT OF THE "AX")

•

•

EXHIBIT 1

•

2546

Page 1

1 SUPERIOR COURT OF THE STATE OF

CALIFORNIA COUNTY OF LOS

2 ANGELES

3 ADRIANNA MRAZ, ESTATE OF RICHARD MRAZ; and minor plaintiffs

4 ADDISON MRAZ, JOE LOPEZ, ROY LOPEZ, through their Guardian Ad Litem

5 Adrianna Mraz,

6 Plaintiffs,

Trial

7 Date; 9-11-06

Case

8 No. Be 332487 -vs-

Mel Recana

Hon.

9

10 DAIMLERCHRYSLER CORPORATION; AMERICAN PRESIDENT LINES LTD.; 11 CERRITOS DODGE and DOES 2-100,

inclusively,

12

Defendants.

13 14

_______________________________ 1

15 The Deposition of TONY BRENDERS was

16 taken in the above-entitled cause before me, 17 Dennis Giblin, a Court Reporter (CSR-OI07) and 18 Notary Public for the County of Macomb, State 19 of Michigan, acting in the County of Wayne, at 20 2501 World Gateway Place, Detroit, Michigan, 21h. on Thursday, June 15, 2006, conunencing at or

22 23

near the hour of 12:00 p.m.

Lieff, Cabraser, Heimann & Bernstein 275 Battery Street

APPEARANCES:

MR. SCOTT P. NEALEY

24

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CHAPA & GIBUN 313-961-2288

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Q.

A.

Page 188

THE WITNESS: You're

talking about the end of the test as opposed

to the data during the test.

BY MR. NEALEY:

Yes.

And the issue between the manual valve

material was the rate of pressure build and

how long it took for the pressure to build in

a situation where the vehicle was not placed

directly into the reverse gear position.

Q.

So if I'm understanding what you're saying,

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you're saying that when you tested these

vehicles quantitatively against each other,

you found that it took longer for the vehicle

with a steel valve when it was warming up to

self-shift into reverse than it took for an

aluminwu valve?

MR. HADDAD: Object to

form.

THE WITNESS: Essentially,

21 under the same conditions, that was what we

'.J~~~

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found.

BY MR. NEALEY:

But they would both still have a delayed

engagement of reverse?

CHAPA & GIBtlN 313-961-2288

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MR. HADDAD: Object to

form.

THE WITNESS: Depending on

the situation that you can try to put them in,

you would -- in the exact same location, the

aluminum valve would not bleed as much fluid

as the steel valve would is what I'm telling

you.

BY MR. NEALEY:

And so everything else being equal, replacing

the steel valve with the aluminum valve would

lengthen the amount of time that it would take

for the vehicle to engage the reverse

circuitry?

MR. HADDAD: Object to

form.

THE WITNESS: Under the

exact same situation.

BY MR. NEALEY:

And putting in an aluminum valve in place of

the steel valve, would that prevent engagement

of the reverse circuitry?

MR. HADDAD: Object to

form.

THE WITNESS: The aluminum

CHAPA & GIBLIN 313-961-2288

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:_i~~: Who tested this for DaimlerChrysler?

Did you test this before

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NHTSA did?

No. Actually it was NHTSA's hypothesis and they tested it, and we validated the

information.

How did you validate it?

By reviewing their test setup and the data,

as well as viewing the test.

But you didn't do this test yourself?

I don't recall specifically if we ran this

test.

Did you come up with a quantitative -- and by

"you", I mean either you or NHTSA in your

testing.

Did you come up with a

quantitative assessment of how much extra

delay in engagement of the reverse function

you got from the aluminum valve versus the

steel valve?

Because it was dependent on the location and

the location did not always give you a

repeatable result, we were unable to draw that

conclusion with any kind of statistical

reliability_

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Page 208

run?

I don't remember specifically. There were

many tests run over the four years of this

investigation. I don't recall specifically

how many they ended up running to get this

conclusion.

Q.

But you guys, DaimlerChrysler, didn't

independently run any testing?

No, sir, we did not.

Q.

So DaimlerChrysler has no information to

either support or contradict the notion that

the switch from a steel to an aluminum valve

would change the dwell time before the reverse

gear is engaged when the vehicle is left in a

position between park and reverse?

A.

We do not, to my knowledge, have that data. Do you have any data that would show the changes that this vehicle would self-shift

Q.

scratch that.

Do you have any data within

DaimlerChrysler that would show that the rate

of injuries as a result of parked or reverse

incidents on the Dakota would be reduced by

more than half by substituting an aluminum

valve for a steel valve?

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Page 209

I'm not familiar with that data.

You know of no data that DaimlerChrysler has

that would show that the rate of injuries

would be reduced by half or more as a result

of changing the steel valve to an aluminum

valve?

MR. HADDAD: Form and

foundation.

THE WITNESS: I'm not aware

of any such data.

BY MR. NEALEY:

And you certainly gathered no such data as

part of your investigation before the recall

was authorized?

A.

I have no idea how you would ever gather that

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data before conducting any kind of action like

that.

Q.

Did you do any retrospective analysis?

A.

I was gone from the safety office before I

would have an opportunity to do that.

Do you know of anybody in the safety office

who did such an analysis?

A.

I do not.

What ultimately was the completion percentage

on this recall?

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thermal expansion that contributed to create

the situation in these vehicles that allowed

for vehicle movement when operators were

intending to put it into park. And it was

only after we changed the aluminum valve that

that leakage was less significant and,

therefore, helped by providing better feedback

to customers in exactly where they were in the

reverse gear that allowed them to have a

better understanding of what the vehicle

motion was going to be as they completed their

shift.

I don't know if I described

that very well.

Let me see if I understand this.

The theory was that during

the warm-up period of the automobile, that if

you used an aluminum manual valve, that if the

car was going to shift from this position

between park and reverse into reverse, it

would happen quicker?

You would get more immediate feedback with

the aluminum valve than you would with the

steel valve.

Is what that Mr. Nealey was talking about

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Page 215

dwell time, the time between when the person

puts the shifter into a position between park

and'reverse and the time that the car actually

begins to go into reverse?

Again, I don't want to speak to Mr. Nealey's

definition, but when we are conducting testing

we did indicate -- or we did find that as you

migrated from the reverse position of the

vehicle, which is where the valve is

completely open, to a position where it wasn't

completely open and in park, you should be

completely closed, that you can get some

leakage and eventually, after you.generate

enough leakage and enough pressure, you

actually have the transmission engage reverse

gear. So it takes time. So that would

generate the dwell time that Mr. Nealey talked

about.

Q.

And just so I'm clear, the difference between

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the two materials, steel and aluminum, is only

significant when the car 1S warming up?

The key difference between those components

is theY're a different rate of thermal

expansion. One expands faster with

temperature than the other one does.

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Q.

Page 216

And once the car is warmed up and they have

both eXpanded, then the dwell time presumably

is very similar, if not the same?

Assuming that you're at a steady state

temperature, because, as you know,

temperatures heat up and cool down depending

on the load, and most of that heat is carried

by the fluid in the transmission. So it's not

a static thing, it doesn't heat up and stay at the same temperature. Heats up arid cools

down, depending on the load placed on the

transmission.

And just so I'm clear, I'm trying to

understand when we were talking earlier about

statistics, which I haven't done since I was

an undergrad.

Was NHTSA able to

demonstrate that there was a statistically

reliable difference between using steel and.

aluminum manual valves for purposes of this

shifting from a position between neutral and

reverse and into reverse?

I do not believe so.

Q.

And despite that fact, DaimlerChrysler

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A.

proposed to and did go forward with the

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