Simon v. Holguin MIL

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF PIERCE

BRAEDEN SIMON, Plaintiff, vs KELLY HOLGUIN and SPOUSE DOE HOLGUIN, individually and the marital community comprised thereof, Defendants

No. 20-2-07549-9

VERBATIM REPORT OF PROCEEDINGS MOTIONS IN LIMINE

SEPTEMBER 13, 2022

Before the Honorable MATTHEW H. THOMAS a Pierce County Superior Court Judge, sitting in Department 13 thereof.

Reported by :

Tobiyah Abhaya

Court Reporter #

Tacoma Avenue South Superior Court

, Washington 98402 ( 253 ) 798 728

APPEARANCES (VIA ZOOM)

FOR THE PLAINTIFF: KAREN KOEHLER, ESQUIRE

Stritmatter Kessler Whelan Koehler Moore 3600 15th Ave Ste 300 Seattle, Washington 98119

LISA BENEDETTI, ESQUIRE Stritmatter Kessler Whelan Koehler Moore 3600 15th Ave Ste 300 Seattle, Washington 98119

SHANNON KILPATRICK, ESQUIRE

Stritmatter Kessler Whelan Koehler Moore 3600 15th Ave Ste 300 Seattle, Washington 98119

FOR THE DEFENDANTS: RORY LEID, ESQUIRE

Cole Wathen Leid & Hall 222 Eturia Street Seattle, Washington 98109

LUCY Wilhelm, ESQUIRE Cole Wathan Leid & Hall 222 Eturia Street Seattle, Washington 98109

TABLE OF CONTENTS

WHEREUPON, the following proceedings were had, to wit:

MORNING SESSION

THE JUDICIAL ASSISTANT: The case today is Braeden Simon versus Kelly Holguin. Cause No. 20 2 07549 9. We're here for a jury trial. Will the parties please make their appearances.

MS. KOEHLER: Karen Koehler for the plaintiff.

THE COURT: Good morning, Ms. Koehler.

MS. KOEHLER: Good morning.

MR. LEID: Good morning, Your Honor. Rory Leid and Lucy Wilhelm for the Holguins

THE COURT: Good morning to you both.

So we're here today for a jury trial, beginning of a jury trial, as Ms. McFarland stated, and to do the motions in limine. I think that the defense had fewer. Maybe, let's start with the defense motions.

MS. BENEDETTI: Your Honor, before we begin with the motions in limine, we would like to note it is our

understanding that the defense has opposed our voluntary nonsuit of

THE COURT: Oh, yeah.

MS BENEDETTI: Mr. Holguin, and it's our understanding that they have authority. They have claimed to have authority for this opposition, but they have not provided it to us, and we would appreciate to receive that authority before we are posed with having to address that motion

THE COURT: Okay. I see Ms. Koehler, and your two other attorneys are appearing. Could you as well make your appearances for Ms. Abhaya?

MS. BENEDETTI: Yes, Your Honor.

Lisa Benedetti and Shannon Kilpatrick.

THE COURT: All right. Thank you.

Okay. We can take that up later today.

So on Mr. Leid -- and Ms. Koehler, on Mr. Leid's motions in limine, it looks like there's agreement on 1,2,3,4,7, 8, 9 and 18, and 19?

MS KOEHLER: Yes, Your Honor

Ms. Benedetti and Ms. Kilpatrick are going to be arguing motions today. Do you need them to change their screen names so that the Court reporter knows who's who?

Ms. Benedetti is the person on the left, and Shannon Kilpatrick is the person on the right, but they'll change their screen name. I see that the Court reporter nodded her head yes.

The Court REPORTER: I know who they are. I

recognize them.

MS. KOEHLER: Yes, thank you.

THE COURT: She indicates that it's fine. She knows who they are now

MS. KOEHLER: Okay. Thank you very much.

THE COURT: Will it be Ms Benedetti? Are you arguing these particular motions? Or Ms. Kilpatrick?

MS. BENEDETTI: We will both be arguing, not obviously, both of us arguing one motion, but we'll go back and forth.

THE COURT: And you're in agreement? Ms. Koehler just stated that the plaintiff is in agreement on those numbers 1,2,3,4,7,8,9,18, and 19? That the parties will stipulate to those motions in limine?

MS KOEHLER: No, Your Honor, I'm not speaking today Ms. Benedetti and Ms. Koehler need to confirm those numbers.

MS BENEDETTI: Yes We are in agreement of 1, 2, and 3, as long as they apply equally to all the parties. As for 4, we are in agreement with it as long as it applies to the existence and outcome of all traffic citations not just for Ms. Holguin but for any party, and to the existence of any unrelated collisions of either party, whether Defendant is in agreement with that is up for them to state.

THE COURT: Okay. So Defense Motions in Limine 1, 2, and 3 are granted.

MS. BENEDETTI: Thank you.

THE COURT: And it will apply to both sides.

With respect to Motion in Limine 4, Mr. Leid, do you agree with that stipulation?

MR. LEID: I don't, Your Honor. And I don't mean to complicate things, but we have also divided the workload on our side, and Ms. Wilhelm will be handling Defense Motions in Limine 1 through 10.

THE COURT: Oh, okay. All right.

MR. LEID: So I will turn it over to her, Your Honor. Thank you.

THE COURT: Thank you.

Ms. Wilhelm?

MS. WILHELM: And Your Honor Plaintiff's Motion in Limine, I'm trying t find it here, 25 I believe it drafts the kind of the point of contention that we have with this Motion in Limine, Defense 4 So maybe we defer until there's discussion of Plaintiff's Motion in Limine No. 24.

THE COURT: All right. So the Court will reserve on 4.

MS. WILHELM: Thank you.

THE COURT: On No. 5, Ms. Benedetti or Ms. Kilpatrick? Or let me have, I guess, Ms. Wilhelm, this one is contested, so you want to since I've read over your materials if you could keep it brief, say a minute of

explanation on this motion.

MS. WILHELM: Absolutely.

So as Your Honor's aware, this trial is going to be quite a few court days We have a recess schedule that's going to draw this out significantly. There are witness scheduling issues, but we're doing our best to accommodate, but because of that Defense is making this motion to limit the number of lay witnesses being called to testify about Mr. Simon's damages and condition, pre versus post collision.

The basis for this is just simply that there's not a lot of probative value in having every single member of Mr. Simon's friend group come testify. I've given specific examples in my reply of potential duplicative witnesses that I would suggest one or the other be excluded, and this is just in the interest of judicial efficiency and to mitigate the risk of kind of playing to the passion of the jury by invoking Mr Simon's role as a friend, a grandson, etcetera, repeatedly through testimony.

THE COURT: All right. Thank you, Ms. Wilhelm.

And to the plaintiff.

MS. BENEDETTI: Your Honor, we object to this motion as duplicative of the existing court rules and procedures.

Obviously, cumulativeness is an issue that will need to be addressed; however, it's premature at this point for the Court to rule that any particular witness or witnesses should

be excluded on the basis of being cumulative. Defendant's arbitrary selection of certain witnesses of plaintiff has no basis in terms of actually whether or not their testimony will or will not be cumulative of another person

Yes, this is a complicated trial with a lot of witnesses, and understandably so given the severity of the injuries that Plaintiff has suffered and the issues at stake. And it would be unduly prejudicial to plaintiff at this time for this issue to be decided prematurely and for Plaintiff's witnesses to be arbitrarily stricken based on nothing more than a claim of judicial economy.

THE COURT: All right. Thank you, Ms. Benedetti. The Court will reserve on Defense Motion in Limine 5.

MS. BENEDETTI: Thank you, Your Honor.

THE COURT: So, moving on to Defense Motion No 6

Ms. Wilhelm?

MS WILHELM: Thank you And I apologize; I just got a little ahead of myself.

THE COURT: You have a nice table of contents at the beginning.

MS. WILHELM: All right. And as far as this motion, your Honor, Defense is asking the Court to preclude non-expert testimony about certain medical diagnoses. The primary concern here is the use of post traumatic stress disorders. This is included in several of Plaintiff's

exhibits that were made by counsel's office, including the diagrams laid out in my initial motion here.

Essentially, Mr. Simon has suffered traumatic injuries; however, he has not been diagnosed with post-traumatic stress disorder. The specific monitor kind of carries a certain weight in our society It's kind of one of those mental health issues that's at the forefront of kind of mental health awareness movements. And definitely has kind of some well known symptomologies that a juror might be thinking of if they hear this in a lay witness testimony, so we're asking that be excluded.

Additionally, any medical diagnoses that are not backed by a diagnosis from a treating provider, we ask that such mention be excluded.

Outside of PTSD, I can't provide any concrete examples that I'm concerned about, but for purposes of today's motion, I'm asking the Court to make a definitive ruling as to the mention of post-traumatic stress disorder.

THE COURT: Thank you, Ms. Wilhelm.

Ms. Benedetti or Ms. Kilpatrick?

MS. BENEDETTI: Thank you, Your Honor.

I won't go into the full detail of our authority on why discussions of a lay witness' personal observation of a person's system are well within their knowledge and capacity to testify to.

Since Defendants focus is on the phrase of PTSD, we are willing to agree to the exclusion of that specific phrase "PTSD" or "post-traumatic stress disorder" until such time as if there is expert medical testimony as to whether or not he suffers from it as long as we are permitted to use some other alternative phrase We are proposing "trauma/mental health disorders," which, as demonstrated by Dr. Fields' expert psychiatric report, is supported or and will be supported by the evidence based on her findings that Plaintiff suffered as a result of the collision acute stress disorder trauma and stressor related disorder, adjustment disorder with anxiety and depressive disorder.

THE COURT: Thank you, Ms. Benedetti.

So, Evidence Rule 701 talks about opinion testimony by lay witnesses If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are A, rationally based on the perception of the witness, B, helpful to a clear understanding of the witness's testimony or the determination of a fact at issue. And C, not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

In reading over the materials that the plaintiff submitted, there was some reference in the medical reports about PTSD; however, the plaintiff is stipulating not to

use -- not to present it in that fashion, but to address the issue of trauma based mental health disorders.

So I guess the Court will grant in part and deny in part, I think with respect to PTSD That is a term that even lay people throw out, perhaps more than needed without knowing what it really means, but I think any of Mr Simon's family who's noticed changes perhaps in him, they should be able to describe what they've noticed about him, but they're not doctors so they can't conclude, of course, that he has PTSD, but they should be able to describe the changes in him that they have noticed.

And then, I think that it's permissible for the plaintiff to talk about his trauma based mental health disorders assuming that foundation is laid for that discussion by the witness

And so, the Court will grant the motion with respect to the term "PTSD" and deny it otherwise

One moment, please.

Okay. The next issue, Ms. Wilhelm, is No. 7; Defense Motion in Limine 7.

MS. WILHELM: Yes, Your Honor.

And this is Defense motion to exclude any reference to emotional distress caused by the course of this litigation, in support of the motion to exclude expert witnesses, those brought at the end of last month.

Mr. Simon's submitted an affidavit discussing his feelings about the potential direction that this litigation could take and the toll that it's taken on him having the matter pending

Defense requests that all be excluded. The basis for that is that the case law cited as well as the potentially prejudicial effect that that would have for the Holguins.

They are not in this litigation by choice. And probative value as to Mr. Simon's condition is going to be greatly outweighed by the potential prejudice of kind of painting a picture of the Holguins forcing Mr. Simon to be in court or some other such inferences that might be made.

So we are requesting that that be excluded.

THE COURT: All right. Thank you, Ms. Wilhelm. Again, I marked this as one that seemed to be agreed

Does the plaintiff agree to this motion in limine?

MS KILPATRICK: As long as it applies to both parties, we have no objection.

THE COURT: Okay. Thank you, Ms. Kilpatrick.

So that will be the order. The Court will grant defense motion in limine, and it will apply to both both sides.

And then, Ms. Kilpatrick or Ms. Benedetti, do you also agree to the Defense Motions 8 and 9?

MS. KILPATRICK: Yes. As long as, again, it applies

equally to both parties.

THE COURT: Okay. So the Court will grant Defense Motions 8 and 9 as well, and it will apply to both parties.

Ms Wilhelm, on Defense Motion in Limine 10?

MS. WILHELM: Thank you, Your Honor.

Defense did moving to exclude not all but a large portion of the pictures from Mr. Simon's childhood of him and his friends and family prior to the collision and the pictures and video of his release from the hospital.

The basis for this is in Evidence Rules 401 through 403. The potential prejudice here and the play to the jury's emotions greatly outweighs any prohibitive values that these pictures would have.

Of course, Plaintiff's entitled to pursue their case to show Mr Simon's condition pre collision, as well as post-collision, pictures of injuries, etcetera, that would be probative to the issue of damages; however, the number of proposed exhibits, again, this is in line with limiting the number of lay witnesses.

The concern here is for judicial economy as well as kind of preventing the prejudice that repeated pictures of Mr. Simon's social interactions pre collision would have in kind of playing to the sympathies of the jury and the suggestion that he's unable to maintain such relationships post-collision.

I've specifically outlined the examples of the kind of numbered exhibits. There are, I believe, 53 pictures of Mr. Simon at various stages of childhood and young adulthood, engaged in various activities such as karate There's an adorable six or seven-year-old Mr. Simon, and he -- and while such pictures definitely do give insight into Mr Simon's personal life prior to the collision, the temporal scope of this going back so far and this vast number, the prejudice of introducing repeated pictures certainly outweighs any probative value when we get into the realm of 53 pictures of Mr. Simon as a child pre collision.

Then there is a series of exhibits showing Mr. Simon leaving the hospital. These are particularly prejudicial and not extremely probative. Because they're showing kind of the community's perception of Mr Simon and his support coming out of the hospital.

We know Mr Simon was in the hospital We know he left the hospital. The showing of support and the pictures of signs and friends on Mr. Simon's release isn't probative of his condition at release. It's not probative of his condition post release, his ability to engage in recreation, his long term damages.

What it is is prejudicial in that it shows that it's a play to the sympathies of the jury. Look at how loved Mr. Simon is. Look at how horrible it was that he was in the

hospital. While this is obviously a tragic accident, and it is a tragedy that Mr. Simon was in the hospital, this is just a play to the jury. It's not probative of any issue in this case

Pictures of friends outside the hospital is not probative of causation It's not probative of the damages that Mr. Simon has suffered. It's not probative of his condition today or any ongoing issues that he's had.

There are plenty of other ways for Plaintiffs to show that Mr. Simon required mobility aids, that he required assistance after he was released from the hospital, without making a show of how many children were waiting for Mr. Simon when he was released or how many friends were at his house.

The probative value of this evidence of these pictures is essentially none, and the potential for prejudice to the Holguins is quite high, and that these are all emotionally charged pictures that aren't going to assist in any determination of damages.

THE COURT: Thank you, Ms. Wilhelm.

Ms. Kilpatrick?

MS. KILPATRICK: Sure.

I'm gonna address the hospital photo or the release from hospital photos separately from the ones of his life growing up. The biggest issue from the Plaintiff's perspective is Braeden's general damages which include things

like pain and suffering, loss of enjoyment of life, and the only way the jury can accurately make a judgment about the changes in Braeden's life is to know what his life was like beforehand

And so, one of the best and quickest ways is actually to show it through pictures because pictures, like they say, pictures speak a thousand words. So without pictures, it will actually increase testimony time. It will require to describe the things that Braeden did growing up and shortly before the accident.

Also, the problem with this part of the motion in limine is, again, as with the lay witnesses, it's vague, and it's duplicative of the Court rules that are already in place. Plaintiffs have no intention of dragging this out. Plaintiffs are often punished by the jury for making a trial longer than it should be.

Ms Koehler is experienced counsel and wants this to close quickly. We ask that you reserve on this portion of the motion to be addressed as needed during the trial.

As for the hospital -- the release from the hospital photos, I find it a little bit ironic that Defendants would be making this request because they themselves have put in a lot of photos of Braeden after the accident, showing the activities he can do, how happy he is.

Plaintiffs have never suggested and are not going to

be arguing to the jury that he's incapable of having fun or he can't do anything at all now. So we're entitled to make that showing beforehand, and this is a really huge momentous issue in Braeden's life and in his recovery And we're entitled to be able to show that this was a positive moment in his life and that not everything is doom and gloom And this was one of those moments that was celebrated by Braeden and his family.

THE COURT: Thank you, Ms. Kilpatrick.

Ms. Kilpatrick, I looked through some of these last night, and some of the photos did not have Braeden in them at all. For example, 156, 157, 160 through 162. And 18, had two, looks like huskies in the photos, but Braeden, Mr. Simon, was not in the photo.

So I wondered about those numbers What purpose do they serve if they don't even depict the plaintiff?

MS KILPATRICK: Sorry Could you read the numbers again? I have 156 through 157, and then I missed the ones that came after.

THE COURT: 160 through 162, and then number 18.

MS. KILPATRICK: Well, I mean, if what Your Honor is suggesting is that those are the photos that you're most concerned with, we can certainly put our heads together and, and, and whittle those down. I mean, if that was the relevance of that is that this was, like I said before, I

don't want to repeat myself, but this was a momentous occasion, and it impacted not just Braeden but his family and friends. And we want to be able to show the good times and the bad times so that we're not accused of focusing only on the negative.

THE COURT: And then photos 1 through 15 depicted Mr. Simon as a child. It seemed a little bit removed from the current, you know, the time period of the accident, far removed in years. Can you talk a little bit about why? I know you mentioned

MS. KOEHLER: I would like to jump back, Your Honor, if I may.

THE COURT: Go ahead.

MS. KOEHLER: And I'm sorry, Shannon --

MS KILPATRICK: No

MS. KOEHLER: So the seminal cases -- seminal issues involving Braeden are not just pain and suffering, but also his whole focus of life in terms of his dream to be a firefighter. This is a child that had a history of well, he has ADHD, significantly ADHD, and has been physical his entire life.

He is not good in school. He's not good at a desk job. His body has been ruined, and to show how ingrained his physicality is, like, why is this a kid that is gonna wanna, you know, jump out of a -- jump off of a burning building or,

you know. There's very few fire -- they don't let you take a lot of pictures when you're training to be a firefighter, but there's a little bit.

But it's the history of the defense will say, Well, he should just get a day job and at a desk. He can be stationary But this is so fundamentally not who this person is from the day he was a child.

And I want to say, Your Honor, that just because we put in I didn't even count the pictures, 56 pictures doesn't mean we used 56 pictures. We are able to pick and choose pictures and not be duplicative. I agree with Ms. Kilpatrick that the last thing we want to do is irritate the jury by showing the same pictures for no reason over and over again. And I believe that this is a matter that should be left to discussion of Plaintiff's counsel on a case to case basis, overruled if needed by the judge.

THE COURT: All right Thank you, Ms Koehler

Ms. Wilhelm, anything further?

MS. WILHELM: Thank you, Your Honor.

First, I'd like to just sort of point out that the issues are not damage to Mr. Simon's family and the impact that it's had on them outside of their relationship with Mr. Simon. So those pictures of kind of the family's reaction to Mr. Simon getting out of the hospital that don't also depict him, I would, again, ask Your Honor to exclude.

In my initial motion, I suggested limiting the number of pictures, and I would offer up to the Court as a potential kind of middle ground. Again, it doesn't necessarily have to be the specific, I think I suggested ten pictures, one video, but I think that that's an equitable way to kind of limit the volume of what we're looking at and what we're anticipating, while also still allowing Ms. Koehler and team to exercise their discretion and best judgment in determining which pictures are most probative and impactful.

THE COURT: All right. Thank you, Ms. Wilhelm.

So the Court will grant in part and deny in part.

The Court will grant the motion with respect to these photos that I indicated that I don't think have Mr. Simon depicted in them. That was 156, 157, 160 through 162. And then No 18 showed the two dogs, but without Mr Simon

I wasn't sure if maybe you were going to bring that into it somehow about how he's affected walking the dogs So I'd keep the door open if you want to lay a foundation. But just in looking at those photos, they didn't seem to depict Mr. Simon.

One of them had a man holding a baby, and I wasn't sure if that was the baby was Mr. Simon. I thought it might be, but --

MS. BENEDETTI: It is.

THE COURT: It is?

MS. BENEDETTI: Your Honor, is that a picture? It's an older picture

THE COURT: Yes.

MS BENEDETTI: at, like, at a football game?

THE COURT: It is an older photo, yes.

MS BENEDETTI: Yes, the baby is Mr Simon

THE COURT: Oh, okay. Then that one's fine.

I understand what Ms. Koehler is saying. Now I understand the relevance of those earlier photos. And so, assuming the foundation is laid for them.

The Court will reserve on the other photos pending the foundation.

MS. WILHELM: Your Honor, can I ask a clarifying question?

THE COURT: Yes

MS. WILHELM: So there's also a significant number of videos of Mr Simon in his capacity as a volunteer firefighter before the collision. Pictures of him repelling, moving hoses, parties with friends, there's a video of him dancing, if those were -- is there some way we can kind of discuss if those are admitted first, we can keep out the pictures of him as a child. I think that I believe he was a volunteer firefighter for eight years prior to the collision if I'm not mistaken. So I feel like the footage of all that would be just as explanatory of his condition as far

as a desk job.

THE COURT: I understand. Ms. Koehler?

MS KOEHLER: Yeah Your Honor, I do take exception to the defense trying to tell the plaintiffs how they should put on a case and what's the better way to do it I believe that the judge is completely correct to be the gatekeeper of making sure there's no cumulative evidence, not irrelevant evidence, or overly prejudicial evidence, but we are trying to illustrate a life and why he chose a career path and starting at the career path does not tell us why he started at that career path. Why that has been his focus since he was a little kid struggling to cope in a world of school and has been physical and needs to be physical, and how that has impacted him because he can no longer be physical

THE COURT: All right. Thank you, Ms. Koehler.

So Evidence Rule 401 provides that "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

And then going to 403, The Balancing Test: "Although relevant evidence may be excluded, if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The Court has mentioned it's going to exclude those photos I mentioned that did not depict Mr Simon at all; however, with respect to the other photos and the videos, I think that 403 comes into play, but the Court is going to reserve on deciding whether or not they should be admitted, depending on the foundation that is laid at trial for their admission.

If the defense wishes, you can object at the time, and the Court will make a decision on admissibility both based on the foundation and then also in consideration of relevance or waste of time.

MS. WILHELM: Understood. Thank you.

THE COURT: Let's see So that will be the order granted in part as to those photos mentioned and denied as to the others for the time being No. 11, is that you, Mr. Leid?

MR. LEID: So Mr. Harbinson makes several comments about violating RCW. She makes comments about Mr. Simon being a vulnerable user of the public way.

The Court REPORTER: I'm sorry, I didn't hear him.

THE COURT: One moment.

Go ahead, Ms. Abhaya.

The Court REPORTER: Can you repeat at vulnerable,

please?

MR. LEID: Certainly.

A vulnerable user of the public way.

The Court REPORTER: Thank you

MR. LEID: And so it is our position that his legal conclusions should be excluded He can certainly testify about speeds and who did what and how they did it under his opinion, but he is not permitted to go beyond that scope. Thank you.

THE COURT: Thank you, Mr. Leid.

Ms. Kilpatrick?

MS. KILPATRICK: Yes, thank you, Your Honor.

Plaintiffs don't intend to have Mr. Harbinson testify about whether Braeden was a vulnerable user or, you know, the other statute that he cited But the problem is that this is a very broadly worded motion in limine. And the case law suggests that even though those may be legal conclusions or ultimate facts that the jury must decide, except experts are still permitted to use those kinds of phrases to get their point across because, otherwise how would they testify?

So we, in responding to this, I mean, we're happy to concede we're not gonna have him testify about the statutes or the definitions of the statutes, but these other terms that are legal terms that are or, you know, terms that the experts use throughout when they're investigating a

collision.

THE COURT: All right. Thank you, Ms. Kilpatrick.

The Court is going to reserve on Defense Motion in Limine 11 based on the briefing and arguments of counsel If there is an objection, it can be raised at trial.

Number 12 Mr Leid?

MR. LEID: Well, it's similar to what Your Honor somewhat ruled on No. 10. They are numerous items of clothing that Mr. Simon was wearing at the time or of his old uniforms, his branded jackets. I'm not quite sure of the relevance at all of any of his former uniforms or branded jackets. That seems to be missing to me in any way regarding relevance, but I think it's similar to No. 10, Your Honor.

THE COURT: All right. Thank you, Mr. Leid.

Ms Kilpatrick?

MS. KILPATRICK: Thank you, Your Honor.

Similar to these photos, these are exhibits that show his physicality throughout life. They relate to his athletics. They relate to his job as a trauma tech at the hospital that he was doing prior to the collision, so they are directly relevant to the same arguments that the photos, that Ms. Koehler made for the photos.

So again, we don't intend to draw this out, but these are another way to illustrate our point that he has long been involved in physicality and athletics, and that's a part of

who he is.

THE COURT: So that's kind of an interesting issue. Not one I've seen. Actually, I think it's kind of a creative way of approaching it You know, I'm thinking of a high school reunion I went to where someone brought in their letterman jacket and put it on the table, and I guess it does tell you something about the person's history and that, in that example, the sports in which they participated.

So looking at 403, the Court has to again look at whether or not the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undo delay, waste of time, or needless presentation of cumulative evidence.

In this instance, it doesn't seem that this memorabilia is really prejudicial. It's not of that nature. As I understand, given the Plaintiff's explanation of its use, it's relevance in that it's physical evidence of Mr. Simon's active life before the incident, I guess, physically-active life before the accident. And for that reason, it does seem to have some probative value.

I think the concern Mr. Leid raises could be a valid one. You know, this could kind of amount to a waste of time if there's too much emphasis put on memorabilia of this type, but we'll have to wait and see, I guess, on that issue.

And so, for the time being, the Court will deny Defense Motion in Limine 12 but leaving the door open to an objection at trial under 403.

No 13, Mr Leid?

MR LEID: Thank you, Your Honor.

What No 13 is this relates to a civil issue that Mr. Arrigo had. The important analysis here in Washington Law, in Teglund would be, first off, this isn't a conviction of anything. And even if it was, for instance, a felony conviction, it's almost or actually is 20 years old, and any crime over 10 years old requires the Court to determine that the probative value of the conviction substantially outweighs its prejudicial effect.

And as Your Honor knows, courts routinely exclude criminal convictions that are over ten years, and this civil issue is over twenty.

So the prejudice and the confusion that could result from the admission of this type of evidence is substantially outweighed because of the prejudice, the confusion, and it's not even a conviction.

THE COURT: All right. Thank you, Mr. Leid.

Ms. Benedetti?

MS. BENEDETTI: Yes, Your Honor. Defendant readily acknowledges in their motion that specific instances of conduct are admissible on cross-examination when probative of

a witness's character for truthfulness or untruthfulness.

No, this is not a criminal conviction, but this is this isn't simply -- this isn't a pin to a conviction for, you know, a theft or a burglary This is a finding by a trial court judge that during the course of divorce proceedings between Mr Arrigo and his wife that he committed multiple egregious acts of untruthfulness.

I'll read verbatim one particular paragraph of from the opinion. "The trial judge found Michael" Mr. Arrigo "breached the obligation to give Virginia" his ex wife "informed of the status of the lawsuit and all settlement offers. Michael defrauded Virginia. He concealed his settlement efforts. He concealed his characterization efforts. He took a substantial portion of the settlement proceeds The Court can come to no other conclusion that the above efforts were done to deprive Virginia of property and her legal rights "

And he caused injury. He took Virginia's half of $140,941.934, and the Court also found that this amounted to a breach of judiciary duty.

Now, the Court has broad discretion to admit or exclude specific instances of non convicted conduct such as this. And these specific instances are highly probative of Mr. Arrigo's character for untruthfulness and lack of credibility.

They are findings made by two impartial California courts that show that he has a history of concealing, lying, and defrauding others when he believes it's financially advantageous to him, and it calls into serious question the credibility of his opinions in this case where it is financially advantageous to him to come to opinions that benefit his client, in this case, the defendant.

And so we ask that you deny this motion and permit this character evidence to be able to come in.

THE COURT: All right. Thank you, Ms. Benedetti.

Mr. Leid, anything further?

MR. LEID: Yes, Your Honor.

Taglund makes it clear that even a felony of forgery of 20 years old is properly excluded State v. Jones, 117 Wn App 221, so even a criminal conviction for forgery that's 20-years-old does not come in under Washington, and this is not a criminal conviction It doesn't even rise to that level.

And so under Taglund and our state's authorities, this is absolutely inadmissible. If it has been a year or two old, it might pass the test, but 20 years old, it certainly does not.

THE COURT: Thank you, Mr. Leid.

MS. BENEDETTI: If I may, Your Honor, if I may briefly reply. That authority that Mr. Leid just provided

has never been provided to us before, so we have not had an opportunity to review it or assess it. Thank you.

THE COURT: All right. Thank you, Ms. Benedetti. So Rule 608 addresses the issue of specific instances of conduct, and it provides that specific instances of conduct of a witness for the purpose of attacking or supporting the witness's credibility 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 probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness. One, concerning the witness's character for truthfulness or untruthfulness; or two, concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Looking at the quote from the case in the plaintiff's brief from California, the Court is quoted as saying "that the witness defrauded his wife and concealed his settlement efforts and that he took a substantial portion of the settlement proceeds," that I gathered from reading this were supposed to be divided between the witness and his wife -- "and that the Court can come to no other conclusion than that the above efforts were done to deprive his wife of the property and her legal rights." And that he took half of

her -- her half of the $140,000 and something dollars. And the Court found this amounted to a breach of a judiciary duty.

So given this record and what 608 B provides, the Court finds that in cross-examination -- you know, the purpose of cross examination is one of the main purposes is to test the varsity of a witness, and so this seems to fall within that purpose, and within Evidence Rule 608 B.

However, the plaintiff is limited in how they can use this information. The rule provides that it can not be proven up by extrinsic evidence. It seems that the plaintiff will, however is able to ask about this incident. And the witness, it will be up to the witness to give an answer, but that the plaintiff is limited, is not able to prove it up by extrinsic evidence

And so, but the Court will allow the plaintiff to ask the question about this prior case And so, the Motion in Limine 13, the Defense in Motion in Limine 13 is denied, as to Mr. Arrigo's impeachment of Mr. Arrigo involving the California case.

No. 14, Mr. Leid.

MR. LEID: Your Honor, we'll withdraw 14 and just cross-examine Mr. Choppa on it.

THE COURT: Okay. Thank you.

So 14 is withdrawn.

15, Mr. Leid.

MR. LEID: Yes. 15 Your Honor is far and way beyond Mr. Choppa's ability to testify about it, and there's just no evidence in our case that Mr Simon's ever applied to be a wildfire firefighter. So the evidence that there's wildfire firefighters hiring or available has no material, no relevance, and it's pure speculation on Mr. Choppa's part.

THE COURT: All right. Thank you, Mr. Leid.

Ms. Kilpatrick or is it Ms. Benedetti?

MS. BENEDETTI: Ms. Benedetti.

THE COURT: I can usually tell by the way you are kind of positioning.

MS. KILPATRICK: I was too attentive.

MS. BENEDETTI: I will lean in more next time.

Your Honor, to begin with, Mr Choppa's addendum about the shortage of firefighters. First of all, it's not limited to wildfire firefighter as the excerpts that we included in our response shows there's a significant shortage of firefighters across the region, including areas where Mr. Simon had applied and has considered applying, and that included a wildfire firefighter.

Having said that even discussion of the wildfire firefighters is not outside the of Mr. Choppa's expertise and testimony or the relevance to this case. Mr. Simon was at the beginning of his path to becoming a firefighter. He

applied to several places and could have easily applied to many other places depending on how the application process went, whether he got into a place where he was most interested in or not

One of the main points that Defendant plans to raise is that Mr Simon would not have been employable as a firefighter, would not have been hired as a firefighter, was not a desirable candidate, or if so, was only desirable in certain areas, and so being able to discuss the shortages that are going on, not just at the time that this crash happened, but even today where he would still be at the relatively beginning of his fire fighting career, these shortages speak to his employability and the kind of and the kind of income that he could have earned at this point and into the future

And so it's relevant. It's within Mr. Choppa's expertise opining on Mr Simon's vocational potential, both present and future, had he not been injured, and it should not be excluded.

THE COURT: All right. Thank you, Ms. Benedetti.

Mr. Leid, anything further?

MR. LEID: Yeah. Just circle back around, Your Honor. Mr. Simon never applied to be a wild firefighter. He never said he wanted to be a wildfire firefighter. Anything to do with wildfire firefighter is not relevant or material

to our case.

THE COURT: All right. Thank you, Mr. Leid.

So this motion in limine seems to go more to the weight that the jury should give this evidence rather than its admissibility. The defense is going to have a chance to cross examine Mr Choppa about this evidence, this testimony

And if you go too far out on a limb, it can actually make the witness less credible, and so I think that the cross examination provides the defense ample opportunity to bring up the issue as to how much weight the jury should give this evidence.

Also just looking under 403, Balancing Test, it doesn't it is potentially probative evidence, and it doesn't seem really to be prejudicial.

And so, for these reasons, the Court will deny Motion in Limine 15.

Defense Motion in Limine 16 Mr Leid?

MR. LEID: I have nothing to add to that, Your Honor.

THE COURT: Okay.

Anything further from the plaintiff?

MS. KILPATRICK: Just to clarify that as long as the solution is limited to just sending the message, Plaintiffs agree that's inappropriate, that's the golden rule, as well as putting themselves in the shoes. But, you know, the two caveats are that we put in our briefing that we are entitled

to argue the various contract of community.

And that our court system serves two functions in addition to remedying wrongs down to the plaintiff. There's also the torts portion of the Court system, and we should be permitted to make that argument as well.

So as long as those two as long as it's clear that this is a narrow motion limited to the golden rule, that's fine with the plaintiff.

THE COURT: All right. Thank you.

Thank you, Ms. Kilpatrick.

It's important for the parties to in closing to focus on the instructions and what the law provides. To go beyond those instructions is always murky, but I understood from reading the briefing on it what the plaintiff was saying about the argument about conscious of the community

And the plaintiff is stipulating not to make arguments about sending a message and sort of, I guess, policy-type arguments. And with that stipulation -- so I guess I'll grant in part the motion. I think that the sending a message is getting to -- is changing the focus of the jury from one of evaluating the facts in the law to one of the, I guess, of a more political nature.

And so, the Court's going to grant it with respect to that language. With respect to an appeal to the jury to be the conscious of the community, I think kind of describes

what their role is.

You know, these are the 12 people from our community who have very diverse backgrounds who apply their common sense when looking at the facts and the law And I think that is in keeping with our jury system that it is meant to be the conscience of our community

And so, for that reason, the Court will deny it with respect to that particular phrase.

So grant in part and deny in part.

Number 17, Mr. Leid?

MR. LEID: Well, I think, as it turns out, I think 17, Your Honor, was essentially ruled on with No. 6.

THE COURT: Okay.

Let me see. To the plaintiff, is it Ms. Benedetti? Or Ms Kilpatrick?

MS. BENEDETTI: We agree that the ruling they've made on No 6 would apply equally here

THE COURT: Okay.

So again, just looking at Rule 701, the lay witnesses may talk about their observations. Obviously, unless they're qualified, they can't give expert opinions. And experts are limited to their areas of expertise. So this seems to be a restatement of the law and of Rule 701 and Rule 702 of the Rules of Evidence.

And for that reason, the Court will grant the Defense

Motion in Limine, incorporating the findings on -- or the order on Motion in Limine 6.

MS. BENEDETTI: Your Honor, just to clarify, our understanding is that on 6 you granted in part and denied in part. You denied as to a lay witness' capability of describing changes noticed in a person as long as it's within their capacity to describe it?

THE COURT: Yes. That's correct. It's just the language of 17 is a little bit different. It seems like a restatement of the rules. These motions in limine, it's always hard. I actually like to discourage the parties to not do motions in limine that simply state the law. And it seems to be a statement of the law. That's why he did Mr. Leid did not really argue the same.

It was just a much broader argument that Mr Leid gave in his briefing, and so I think he is stating the law. And so, it's, I guess, so broad what the Court can do to address your concern is simply to reserve on it. I think Mr. Leid has stated what the law is, but there isn't anything specific for the Court to address. It may come up during trial and at that time the objection could be made and the Court can rule on it at that time.

MS. BENEDETTI: Thank you, Your Honor.

THE COURT: No. 18, Mr. Leid?

MR. LEID: I believe that's agreed to as reciprocal.

THE COURT: I do have that as one that was agreed to the plaintiffs?

MS. KILPATRICK: Yes, Your Honor. As long as we receive notice You know, part of the problem is

MS. BENEDETTI: Not 18.

MS KILPATRICK: Oh, my apologies I misread

THE COURT: Okay.

So 18 is granted and applies to both parties.

No. 19 appeared to have been agreed.

Ms. Kilpatrick or Mr. Leid, do you agree?

MR. LEID: I agree, Your Honor. And given the moving target of dates with the trial right now, it is a little hard to figure out where everything's going to go. But, yeah, we should have at least four or five to a week to know if a witness needs to testify out of order, so we certainly agree to provide as much notice as we can.

THE COURT: I appreciate that Ms Kilpatrick?

MS. KILPATRICK: Yeah. I was just gonna say that we have a lot of witnesses that we can't move because their doctors. We have a lot of doctors. And we have our own experts who have their own schedules, so we're certainly willing to work with Defense counsel, but that's why we need as much notice as possible because otherwise, we're going to be in a position where we have witnesses we can't move, and there's nothing we can do about that, you know, other than

incur several thousand dollars in penalties in canceling a doctors' testimony at the last minute.

THE COURT: All right.

So with that caveat, that is if the plaintiff already has an expert scheduled in that time slot and would suffer the same consequences if there were to move that expert They won't be required to move an exert to accommodate taking a Defense expert out of turn. But otherwise, the Court

grants the motion and appreciates the parties' willingness to work together on this.

I think the jury would have no problem understanding why it's being done, and it won't affect the jury's understanding of the evidence or their deliberations. It won't cause any prejudice to either party in that sense, and so the Court will grant the Defense Motion in Limine 19

MS. KILPATRICK: Just to clarify, Your Honor. You mentioned "experts," we would also like it to apply to treating physicians who have busy schedules and have taken certain time out of their schedule at great cost to us to get their testimony. So I would just ask that it also applies to experts and treating physicians.

THE COURT: Yes. Thank you for that clarification.

Yes. I did intend to include professionals of that nature.

No. 20?

MR. LEID: That's agreed, Your Honor.

THE COURT: All right. Anything to the plaintiffs?

MS. KILPATRICK: No. That's agreed, Your Honor.

THE COURT: Okay, very good

So 20 is granted.

And with that, why don't we take a morning recess and we'll resume at 10:30.

MS. KILPATRICK: Thank you, Your Honor.

THE COURT: Thank you.

THE JUDICIAL ASSISTANT: The Court is at recess. (Court at recess.)

THE COURT: Welcome back. I hope you had a nice break.

So turning to the Plaintiff's Motions in Limine --

MS BENEDETTI: Your Honor, before we turn to those, we would like to renew our request from the defense that they provide us with whatever authority they have for why they could oppose our voluntary nonsuit. We requested that at the beginning of these proceedings, and we still have not received that.

THE COURT: All right. Thank you, Ms. Benedetti.

So turning to the Plaintiff's Motions in limine. Who will be arguing those on behalf of the plaintiff?

MS. BENEDETTI: We will still be splitting those.

THE COURT: Okay.

And then, Mr. Leid, are you going to split those up with Ms. Wilhelm?

MR. LEID: We are, Your Honor. Ms. Wilhelm is taking the first 22

THE COURT: Okay. All right. Thank you.

MR LEID: Thank you

THE COURT: So Plaintiff's Motion No. 1?

MS. KILPATRICK: I think it was agreed, Your Honor.

THE COURT: Oh, thank you. Thank you.

Actually, let me run through the ones I thought were agreed by the parties.

So No. 1, 2, 3, 4, and 11? Is that correct to the plaintiffs? Or to the Defense, do you agree with those motions in limine?

MS WILHELM: Your Honor, I think that as to 2 and 3, Defense wanted to reserve if Plaintiffs puts forward an argument such as Mr Simon will be forever reliant on his parents for any future medical care expenses, etcetera, that we be permitted to introduce evidence that he has received social security, but it sounds like Plaintiff's not intending to enter that argument, so we are in agreement.

THE COURT: That was on?

MS. WILHELM: 2 and 3.

THE COURT: 2 and 3.

MS. WILHELM: Correct.

THE COURT: And are you saying you are in agreement with that stipulation?

MS. WILHELM: Yes, Your Honor.

THE COURT: Okay So 1 through 3 are granted

MS. BENEDETTI: Your Honor, I'm not quite sure what it is that the defense is saying that we've agreed to When they say -- we have -- we have stated that at least up until this point, Plaintiff Simon has been partially significantly reliant upon his parents. And if we state that as something that is current or something that has happened in the past, is the defense claiming that that, too, opens the door to discussions of his receipt of insurance?

Because frankly that would be inappropriate and inadmissible, and, you know, there's been an issue in this case of Defendant's possession of insurance which we have agreed because of the case law that it is inadmissible.

But, you know, there's a similar issue there where, you know, they're going to try to portray her as a very sympathetic, you know, a person a sympathetic mother of reasonable means who, you know, is being faced with a potentially millions of dollars in a verdict.

And for them to say that that if we talk about the hardship that he has suffered because of a catastrophic injury and the financial hardship that it has caused on him, that that opens the door to talking about collateral sources

of insurance, you know, that really opens up a big can of worms there.

THE COURT: Okay.

So on No 2, anything further, Ms Wilhelm?

MS. WILHELM: No, Your Honor, just as stated.

THE COURT: Okay

So on No. 1, the Court is granting No.1.

On No. 2, the Court will reserve depending on what evidence comes up at trial.

On No.3, Ms. Benedetti or Ms. Kilpatrick, would you like to address that one?

MS. BENEDETTI: It's basically the same issues as No.2.

THE COURT: Okay.

And Ms Wilhelm, anything on No 3?

MS. WILHELM: Just in the plaintiff's response, they indicated they're not intending to put forward an argument that Mr. Simon will be reliant on his parents for the rest of his life. That was the concern. It sounds like we're agreed in that case.

THE COURT: All right.

MS. KILPATRICK: Again, again, it's Plaintiffs are certainly entitled to discuss the fact that Braeden has received, has been reliant on his parents. That doesn't mean that his receipt of social security disability benefits

becomes irrelevant because we're not arguing that his parents are entitled to reimbursement or that Braeden is entitled to extra money to then give back to his parents. It's just simply part of how the accident, how the collision, and injuries have affected him.

So it's, you know, we're not saying that argument We're not going to mention it at all. We're just saying we're not gonna get up there and say, Braeden, is going to be forever relying on his family, give him a lot of money. That's the distinction we're trying to make here, and I want to make sure that I'm clear for the record.

THE COURT: Okay.

MS. WILHELM: And based on your representation, I'm in agreement.

THE COURT: Well, given that caveat, the Court will reserve on 3 as well. No 4?

MS. WILHELM: I think we're in agreement.

MS. KILPATRICK: I think that's agreed.

THE COURT: Okay. The Court will grant Plaintiff's Motion in Limine 4. No. 5?

MS. KILPATRICK: This is one that it isn't clear to me why defendants think that this evidence could ever be relevant. They didn't make a case for it. This is one of

those things where as soon as a party or a lawyer mentions the impact a jury verdict could have on insurance rates that implicates the jurors themselves, and then that is something that sort of seeps in and encourages the jury to make a decision, not on the evidence, but based on emotion, and so this, you know, we gave Defendants the opportunity to make an argument by admissible, they did not. So this motion should be granted.

THE COURT: All right. Thank you, Ms. Kilpatrick. Ms. Wilhelm?

MS. WILHELM: The plaintiff is asking the Court to reserve. I don't have further argument to offer.

THE COURT: Okay.

Applying a 403 Balancing Test with respect to No. 5.

The Court finds that any probative value would be outweighed by the prejudice that it could cause to the plaintiff if the jurors were presented evidence, that their own insurance rates could go up.

It doesn't seem to be really relevant to the issues in this case, and it likely would involve speculation. And for these reasons, under the Balancing Test of 403, any potential probative value is outweighed by prejudice, potential prejudice to Mr. Simon.

For that reason, the Court will grant Plaintiff's Motion in Limine No. 5.

Is No. 6 agreed between the parties?

MS. WILHELM: Yes, Your Honor.

MS. BENEDETTI: Yes.

THE COURT: Okay Then No 6 is granted No. 7?

MS BENEDETTI: Your Honor, as part of talking about No. 7, we would like to share a PowerPoint; if it would be possible to grant permission to share screen?

THE COURT: Yes. I see that that involves photos of the family. And I did see that in your briefing. I think you included the photos.

MS. BENEDETTI: Your Honor, the defense clearly has indicated that they seek to introduce personal and background information on the Defendant Holguin, you know, including at least two photos of proposed Exhibits 614 and 618, family photos that show the entire family, including their underage children

These exhibits and any background information on Defendant have no bearing on any issue relevant to this case. The issues are limited to how the collision occurred and the damages that Plaintiff suffered.

Mr. Holguin was not present. Their son was not present. Their daughter was in the backseat but is not a trial witness in this case and, frankly, was likely not able to be competent to do trial testimony in this case.

Introducing these, you know, adorable family photos would serve no purpose other than to garner sympathy in the minds of the jurors, which is a particular concern in this case You know, as with any case where the damages are severe, and the defendant, rather than being a large corporate defendant, is an individual

You know, as much as the jurors are expected to check their emotions when it comes to concerns about, you know, that could have been me. I could be facing millions of dollars, you know, if I committed such a mistake, and that would, you know, if that happened to me, that would bankrupt me, you know, that's simply -- it's understandable that will often happen in the minds of jurors.

And pictures such as this would only serve to garner sympathy and to encourage them to consider improperly what a large verdict, what effective large verdict may have on a family such as this

And for that reason, they are not probative; they are absolutely prejudicial and should be excluded. Thank you.

THE COURT: Thank you, Ms. Benedetti.

Ms. Wilhelm?

MS. WILHELM: Thank you, Your Honor.

These pictures are appropriately posed as trial exhibits here. They are probative. Ms. Holguin and her husband are both named in this suit. Ms. Holguin and her

family and her consideration of her family was relevant as to where her attention was and her driving patterns on the day of collision.

Her testimony indicates that she, in deposition, indicated kind of where she was paying attention. The fact of her going to get her son, and having her daughter in the car, makes her attention to Mr. Simon and oncoming traffic more or less probable.

As Your Honor stated earlier, the question of relevance is whether or not makes the lasting controversy more or less likely to be true.

The fact that Ms. Holguin being on her way to see her son and having her daughter in the car, makes where her attention was more or less probable; more or less believable is, therefore, all relevant

Two photos of the Holguins is not going to outweigh the probative value of Ms Holguin's mental state at the time of collision and where her attention was. These two exhibits are appropriate with potential prejudice that could result if the jury decided not to set aside their emotions when looking at these pictures. It does not outweigh the probative aspects of this in that they corroborate Ms. Holguin's her mental state, and her testimony about what occurred in the collision. So I'm asking Your Honor to deny this motion.

THE COURT: All right. So --

MS. BENEDETTI: Your Honor, briefly?

THE COURT: Yes, Ms. Benedetti.

MS. BENEDETTI: If this were a case where Defendant's liability was still on the table, these pictures would still be far more unduly prejudicial than probative. You know, Defendant would be well within her rights to talk about where her attention was in terms of watching the road. But just, you know, including pictures and discussing her children would be more prejudicial than probative.

But in this case, Defendant's liability has been established. So her talking about where her attention was and whether the fact that her daughter was in the car or the fact that she was driving to her son's school affected her attention is completely irrelevant because her liability has already been established

And given that irrelevance and the unduly prejudicial nature of the family photos, they should be excluded And evidence of where she was going relative to her going to her child's school or her daughter being in the car.

THE COURT: All right. Thank you Ms. Benedetti.

Ms. Wilhelm?

MS. WILHELM: Thank you, Your Honor.

I just would like to put forth again that comparative negligence, in this case, has not been foreclosed by Court's prior ruling. There's still a question of comparative fault,

and Ms. Holguin's attention goes directly to that issue which is properly in front of the jury in this case.

THE COURT: All right. Thank you, Ms. Wilhelm.

So in looking at Rule 403 again, "Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of issues or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

I think this is a close call without knowing the context, more about the context about how this would be relevant.

For that reason, the Court is going to reserve on Plaintiff's Motion in Limine No. 7. And depending on where the testimony goes, Ms Holguin's testimony, we can take it up at that time when it's offered, if it's offered at trial.

MS KOEHLER: Your Honor, on this particular exhibit because we won't know -- I mean, I know how the defendant's trying to put family photos in, but I would like this to not be used in opening statement.

THE COURT: Well

MS. KOEHLER: If they want to try this in their case and chief, that's fine, but at this point, I think it should not be allowed in opening statement.

MR. LEID: Your Honor, if I could be heard?

THE COURT: Yes.

MR. LEID: Here's the prejudice, and this is becoming substantial. They've got somewhere in the neighborhood of 3400 photographs that they are going to put in, and we're offering essentially 2- to 4.

And there is no prejudice in any way, shape, or form except if you don't allow us the photographs because otherwise, in closing, the plaintiffs get to show the jury multiple photographs of the plaintiff repeatedly, but we don't get to show a single photograph of our clients.

That is a substantial prejudice to our presentation of defense with no prejudice to the plaintiffs. So it is rather substantial, and we should be able to offer them in opening just like Plaintiff is.

THE COURT: All right

MS. KOEHLER: Let me say one more thing.

THE COURT: Yes

MS. KOEHLER: These are photographs of little kids, and we've asked to exclude the husband, so if he wants to put in a photograph of Ms. Holguin, who would be the only remaining defendant, we wouldn't have an objection about that. That's not what this is.

THE COURT: All right.

Ms. KOEHLER: These are trying to put nonparties to the case.

THE COURT: All right. Thank you.

The Court is going to reserve on No. 7.

With respect to opening statement, the parties know that whatever you present in your opening, you want to present evidence that you know is going to be established at trial, and I would just leave it at that I'll leave that to your discretion.

No. 8.

MS. BENEDETTI: Yes, Your Honor.

THE COURT: Is it Ms. Benedetti?

MS. BENEDETTI: Yes, Your Honor.

THE COURT: Go ahead.

MS. BENEDETTI: As to No. 8, our bases is similar to No. 7, so I won't repeat all that; although, I will point out that as to Trial Exhibit 611, all indications are that this photograph was not taken during, you know, in close proximity in relation to the collision You can even tell from the view out of the back that it appears that it was not on a street, that it appears that it was, you know, in some kind of parking lot.

And so, this is not evidence of the collision itself or the events proceeding it, or it could be the aftermath. It has no probative value to the issues of this case and it has and it's because it again is attempting to illicit an emotional response by picturing her child and her dog. It is

unduly prejudicial.

And as to proposed Exhibit 603, it is a picture that was taken on the date of the collision, but all it pictures is the inside of the vehicle, including child objects And I think it's telling that of all the pictures that Defendants could have chosen to introduce as part of their proposed trial exhibits that -- that so many of them relate to, you know, are these tangental photos. Yes, they have tried to introduce they've included some photos that have to do with the position of the cars and the appearance of the vehicles of the outside, but just seeing the shear number of the photos that they're trying to get in that are so irrelevant or tangentially relevant at best, you know, is an indication of how they intend to use them and that they should be excluded Thank you

THE COURT: Thank you, Ms. Benedetti.

Mr Leid or Ms Wilhelm

MS. WILHELM: Thank you, Your Honor.

And focusing on the subject of this motion rather than, you know, the choice about how Defense has tried to streamline their case. The picture with the picture that depicts Ms. Holguin's daughter in the backseat of the car is representative of exactly the conditions that were present at the time of the collision. That is where Ms. Holguin's daughter was seated and the car seat she was seated in.

Admittedly, it's not the day of the collision, it was not a dog in the vehicle at that time, but it is representative of what Ms. Holguin had in the car at the time of the collision; therefore, it's very relevant, again, to our theory about how liability should be allocated in this case

Same goes for the picture taken by the Pierce County Sheriff's Department of the inside of the car. It shows in part that the side airbags deployed on that side of the car, which is now extremely relevant given that Plaintiffs have, at the last minute, introduced an expert in crush factors; therefore, this picture is going to be extremely probative and extremely important in our kind of challenging the testimony of Plaintiff's experts.

The probative value of these pictures is so high that any potential possible prejudice that might result from a potential juror is outweighed by the probative value, and any prejudice certainly does not outweigh or substantially outweigh that probative value. Again, this goes towards our theory of the case in the fact that we are asking the jury to find comparative negligence.

On that basis, these photos are both relevant, and they should both be admitted. We're asking the Court to deny this motion in limine.

THE COURT: All right. Thank you, Ms. Wilhelm.

MS. BENEDETTI: Briefly, Your Honor.

THE COURT: Yes, Ms. Benedetti.

MS. BENEDETTI: Yes.

The defense has acknowledged that the photo 611 was not taken on the day of this collision and that it includes extraneous details such as the presence of the dog which was not present at the time of the collision. It has no probative value in this case, and the prejudice substantially outweighs any probative value they might have.

As for the issue of 603, their claimed reasoning for including it is to show that the airbags deployed. I think it's very telling that in the photo, the airbags are barely visible. You know their reasoning for including this photo is simply to show that the airbags deployed just doesn't hold water here and that the purpose behind it is more to elicit an emotional response from people by seeing the children's objects in the back of the vehicle And so we would ask that our motion be granted.

THE COURT: All right. Thank you.

MS. WILHELM: I would just like to point out that we have the pictures we have of the vehicle, and that's what we have to work with. We can't go back and take more pictures of this vehicle. Those depict exactly what Ms. Holguin would have had in her rearview mirror at the time of the collision.

THE COURT: All right. Thank you, Ms. Wilhelm.

So again looking at Rule 403, the issue is how probative are these photographs as to the issues in the case. And weighing that against any potential prejudice. I think there is something to the parties being able to complete, I guess, the picture of what happened on that day and who was present

With respect to the child in the car seat, the defense will have to establish that the photograph fairly and accurately depicts the scene as it was on that day. It doesn't mean that the photo has to be taken on that day, but it does have to fairly and actually depict it, and so that will depend on the testimony that Ms. Holguin is able to lay as a foundation for that photograph.

The other one it seems to be a bit easier foundation wise because it's taken on that day, and it seemed to be relevant in completing, I guess, the picture of what happened

I understand that liability is admitted, and so that makes it less relevant. But again, I don't find these photos are particularly prejudicial. They just depict the car.

And so for that reason, the Court is going to reserve at this time waiting to see what kind of foundation is laid for the photograph, and the Court can take up any objection at the time if there is one.

So the Court will reserve on these two photographs.

Let's see. No. 8 was the same. So that's 7 and 8, correct?

So we go to No. 9.

MS KILPATRICK: This one is about whether anyone else was injured in the collision. And this is another one where we gave the defense the opportunity to explain how this evidence is relevant, and they simply said we should be -the Court should reserve, and we should be permitted to raise it.

And so, I guess, it's hard for us to argue against a non argument, but also, it doesn't have any probative value to any of the issues that the jury is going to decide because this case is about Braeden Simon. It's not about whether anyone else was injured, and whether anyone else was injured has no basis on Braeden Simon damages

So it's speculative. The purpose of this evidence is speculative, and it has no bearing on any issue, and it's unduly prejudicial and risks confusing the jury, so we ask that you grant the motion.

THE COURT: Thank you, Ms. Kilpatrick.

MS. WILHELM: And I'll withdraw.

THE COURT: Ms. Wilhelm?

MS. WILHELM: And I'll withdraw our opposition to this one with the interest of time. Thank you.

THE COURT: Okay. So this is No. 9. The Court will

grant Plaintiff's Motion in Limine No. 9. No. 10.

MS. KILPATRICK: This is another one. A similar response from Defendant They don't really explain how an apology or expression of remorse is relevant to the issues the jury has to decide The purpose that we'd ever see it used for is to influence the jury so that the jury will think, Well, their sorry. They didn't mean to do this. We feel bad for the defendants, so we're gonna come up with a lower verdict then we might otherwise have.

And so, again, this is the kind of thing that that has no probative value. It's an entirely emotional argument, and if it happens, if the Court reserves, and then it happens, the bell gets wrong, we have to either object and call attention to it or let it go, which is also prejudicial So we ask the Court to grant the motion.

THE COURT: All right Thank you, Ms Kilpatrick

Ms. Wilhelm.

MS. WILHELM: Your Honor, Defense is concerned with this motion in limine, but we're going to artificially draw a boundary around what Ms. Holguin could testify from her subjective experience of the collision. If she immediately, in the aftermath, felt some sort of remorse or guilt or other emotional impacts from this collision that was part of her state of mind, we're just wanting to avoid having to draw any

artificial limits around her testimony.

I don't believe that we intend to illicit any improper type of statement of apology from Ms. Holguin, but the concern is that it's limiting her testimony about her response to the collision at the time.

THE COURT: All right Thank you, Ms Wilhelm

Anything further, Ms. Kilpatrick?

MS. KILPATRICK: Well, it's, I mean, it's sequential mindset for immediate thought process. And feelings after the collision have no bearing on comparative faults for Braeden's damages. It's sort of like if Braeden wanted to testify about his feelings, that, I mean, that doesn't matter in terms of what, how the collision happened to comparative negligence and damages. So it doesn't make anything more or less likely; more or less probable, and, you know, CR 403 supports our motion.

THE COURT: Okay Thank you, Ms Kilpatrick

So without hearing what the statement would be, it's difficult to do a 403 Analysis. In some ways it could cut. Both ways it could work against the defense if Ms. Holguin expresses that she was sorry for the accident.

And so, with the little that the Court has, it's just very difficult to answer this question. And so I do want to he reserve until I have had a chance to hear more on this at trial.

So far, it doesn't sound like it is going to be an issue from what Ms. Wilhelm said. It doesn't sound like it's going to come up, but if it does, the Court can handle it at the time, and the plaintiffs can make an objection, and the Court can rule on it at the time when I have more information, but it doesn't sound like it's going to be an issue.

No. 10 I'm sorry, that was No. 10.

So the Court will reserve on No. 10.

And 11, it looks like the parties are in agreement that there won't be any testimony about settlement negotiations.

MS. WILHELM: That's correct.

THE COURT: Okay. So No. 11 is granted.

Number 12?

MS. KILPATRICK: This is another one that they haven't put forth any argument about why this evidence, the taxability of his recovery, or the non-taxability of his recovery is relevant. The harm to the plaintiff is that if there's some suggestion that it's not taxable.

Well, let me just put it this way. Once you inject a speculative issue like taxes into the equation, then that gives the jury all sorts of reasons to lower or raise the amount of damages that they're going to award based on an issue that there's no basis for.

Like, they don't have anyone that's gonna testify, they don't have a witness who's gonna testify about whether or not it's taxable, whether his recovery is taxable or not, so this entire issue is speculative and prejudicial and we ask that it be granted. Thank you.

THE COURT: All right Thank you, Ms Kilpatrick

Ms. Wilhelm.

MS. WILHELM: I would just ask the Court reserve ruling unless this becomes relevant. I don't anticipate it will, but like the prior motion rather address it at the time. If it does come up, then have a preemptive ruling.

THE COURT: All right. One moment.

MS. KILPATRICK: I mean, they still have not put forth any reason to not grant our motion, and I simply submit that this motion could be granted, and the defendants would still have the ability to raise it outside of the presence of the jury before any word of taxability gets mentioned, and that would still be a way for them to make the argument if for some reason it has now become relevant but without prejudicing the plaintiff.

THE COURT: Okay. Thank you, Ms. Kilpatrick. One moment.

I think this is going to be an issue. The Court is going to grant the motion in limine, but will leave the door open. If you wish to the defense, you can bring it up during

the trial outside of the presence of the jury, and the Court can address it at that time.

Number 13.

MS WILHELM: And if I can just kind of step in preemptively I think we're going to be in a similar position to the last motion in limine So I ask the Court hold similarly if Plaintiffs are in agreement.

THE COURT: Okay. I have written down that you do not intend to offer this evidence. Is that fair to say at this point?

MS. WILHELM: Yes, Your Honor.

THE COURT: All right. Then the Court will grant No. 13. Again, leaving the door open if it becomes an issue, the defense can raise it outside the presence of the jury, so we can take it up at that time

Number 14.

MS WILHELM: And I'd like to jump in really quickly and save us some time. I would like to withdraw our objection to this motion.

THE COURT: Okay. No. 14 is granted.

Thank you, Ms. Wilhelm.

Number 15.

MS. KILPATRICK: Okay. This is about the defendant being or not being permitted to speculate in either voir dire or opening statement about the amount that Plaintiff may

request at the end of the trial. It would be -- first of all, it would be speculative and argumentative. It's not permitted in opening statements. We have to be very careful during jury selections that we're not somehow tainting the jury with suggestions of what may or may not happen.

Plaintiff also hasn't made the decision about what amount they may request at the end of the trial, in part because it's going to depend on how the evidence is going to come in. And so all that can do would serve to raise the jury's ire that Plaintiff's are somehow unreasonable or making a big request for amount of damages that may not ultimately turn out to be the case. This motion should be granted.

THE COURT: Thank you, Ms. Kilpatrick.

MS WILHELM: Thank you, Your Honor

Plaintiffs, through discovery, have submitted a very concrete number of special damages, particularly related to medical expenses. And I believe that that is fair game for opening statements. This is going to be a huge element of the case is disputing these medical charges and other special damages. And there is a basis for us to believe that will come in through evidence, and therefore it's appropriate and should be permitted in opening arguments.

THE COURT: Is there any argument regarding bringing the numbers up during voir dire?

MS. WILHELM: I'll have to let Mr. Leid speak to that. He is taking point on voir dire for us.

THE COURT: Mr. Leid, thank you.

MR LEID: I think a specific number would be appropriate with voir dire, but I think that the general numbers are appropriate

THE COURT: When you say "general numbers" or a general topic of damages, is that what you're saying?

MR. LEID: Sure. And that the plaintiff is or is not going to ask for a large amount, and how would the jury feel about X or Y? Is that a large amount? What do you think? I think, generally speaking, that is appropriate in voir dire.

THE COURT: All right. Thank you, Mr. Leid.

MS. KOEHLER: I agree.

THE COURT: Ms Kilpatrick

MS. KILPATRICK: I think Ms. Koehler's indicating that she's agreed to Mr Leid

THE COURT: Oh, Ms. Koehler.

All right. So the Court will grant in part and deny in part on this issue.

One moment.

So on the issue of voir dire, it's permissible. The Court will grant the motion as to specific numbers during voir dire, but as Mr. Leid testified or stated it would be appropriate to touch on the general topic of damages with the

jury to get a sense of whether or not any of the jurors have bias to weed that out.

And then, with respect to opening statements, the Court denies the motion This is a issue at trial, and the parties may address it in opening statement. So granted in part and denied in part

Okay. No. 16.

MS. KILPATRICK: This is another one that's aimed at keeping Defendants from using authoritative terms about Plaintiff's compensation request or the amount that the jury may award. They specifically took issue with "windfall," and my response is that, you know, they are smart lawyers, they can come up with other ways to make their arguments without using a negative term like "windfall," which suggests that Braeden is doing something improper

We are certainly permitted to make the argument that their experts are correct as to a law on the fact that how much Braeden claims the damages are worth. But there's no need to use terms like "windfall," or "jackpot justice" or "winning the lottery," or other things like that.

THE COURT: All right. Thank you, Ms. Kilpatrick.

MS. WILHELM: Thank you, Your Honor.

I suppose we're in agreement that we shouldn't be making arguments that appeal to the passion for the jury, for instance, that this is "jackpot justice"; however, windfall

is a commonly used term to describe when there is a windfall to someone in some sort of deal.

It's not necessarily negative, and it doesn't imply any sort of wrongdoing or any kind of sketchy business It's a term commonly used, relatively benign, and is one that our experts are comfortable with are common to discuss that with me in terms of a lookback period for interest rate, and it's one that the jury can understand without us needing to launch into a long technical explanation of the mechanics and the math that might explain the difference in numbers.

And we can say, "There's a windfall because of interest rate," versus "Because of the way the interest rates are, this number is lower than Plaintiff's number."

Certainly, we can do that, but windfall is a shorter way of explaining the idea to the jury in a way that they'll understand.

THE COURT: All right Thank you, Ms Wilhelm

Are you planning to use "winning the lottery"? Or is that one you think should be available?

MS. WILHELM: That one's not in my plan.

THE COURT: Okay.

Anything further, Ms. Kilpatrick?

MS. KILPATRICK: Well, I'm just going to take is issue with their description of the term "windfall," how it's relatively benign. I just Googled it and the first

definition is: A piece of unsuspected good fortune. Typically one that involves receiving a large amount of money, like windfall profits.

And so, I mean, this is very similar to when you hear people say things like, Oh, you're so lucky. You got hit by a car, and now you're going to get a lot of money for it That's the connotation of the term "windfall." As if anyone would choose receiving a large amount of money in exchange for having permanent life altering injuries. There's no reason for it other than to appeal to the emotions of the jury and there's simply other ways without using authoritative terms.

THE COURT: Thank you, Ms. Kilpatrick.

So in looking at this issue, the defense has offered they are not intending to use the word "jackpot justice" or "winning the lottery."

And the Court finds that the term "windfall" is not prejudicial and will not, I guess, appeal to the passion of the jury. It is a term that is commonly used and can be used in talking about financial matters and may be appropriate in this case depending on what the evidence is, but at any rate, it certainly doesn't seem like a term that is going to appeal to the passion of the jury.

And so, for that reason, the Court will grant the motion with respect to "winning the lottery" and "jackpot

justice" and deny the motion with respect to the word, use of the word "windfall."

One moment. No 17?

MS. BENEDETTI: Your Honor, before we move on to 17, we would like to go back and withdraw our objection to the photographs that were referenced in Motions in Limine 7 and 8.

THE COURT: 7 and 8?

Okay. The Court had reserved on those two. So you're withdrawing your objection, and so saying that, the Court can then deny those motions in limine?

MS. BENEDETTI: With respect to those photos.

THE COURT: Okay. So the Court will not reserve and will deny those motions We're talking about the family photos and the car photos?

MS BENEDETTI: Correct

THE COURT: All right.

MS. KILPATRICK: I did want to clarify because those motions were a little bit broader. So, just so it's clear, we're just withdrawing our objection to the photos and not the other portions of the motion.

THE COURT: Okay. That's fine.

And so, I guess, based on that stipulation, the Court will deny the motion with respect to the photographs but

reserve on the issue of testimony. Is that what you were saying?

MS. KILPATRICK: Yes. Thank you, Your Honor.

THE COURT: Okay So now going back to No 17

MS. BENEDETTI: Thank you, Your Honor.

We are requesting that Defense be prohibited from making any comment or reference for implication that the plaintiff has not called any specific witness or that that witness has failed to testify. You know, it is well settled that the parties are both parties are equally able to call whichever witnesses they choose to or not to.

And particularly in a case like this where plaintiff has suffered catastrophic injuries and has received a significant amount of treatment and continues to treat, the potential for witnesses is extreme

We certainly don't want to present cumulative witnesses We want to be streamlined We don't want to alienate the jury by drawing this case out any longer than it needs to, but if the defense is then permitted to say, Well, Plaintiff didn't call this person or Plaintiff didn't call that person, when the witness was potentially so great, and when the defense if they had wanted to call that witness, could have done it themselves. The relevance is far outweighed by the unfair prejudice of allowing them to do that. And so our motion should be granted.

THE COURT: All right. Thank you, Ms. Benedetti.

Ms. Wilhelm.

MS. WILHELM: Thank you, Your Honor.

My initial inclination was to ask the Court to deny this motion because Plaintiff does have the burden of proving causation and damages here; however, recognizing that we are trying to kind of streamline trial and that previously we have made motions in limine to reduce the number of lay witnesses, I ask the Court to reserve ruling on this one.

Plaintiff does have the burden of proof here as to damages and causation. And if there is a lack of evidence as to some element of causation or damages, Defendant should be able to comment on such lack of evidence, but. Thank you.

THE COURT: All right. Thank you, Ms. Wilhelm.

So the Court will reserve

MS. BENEDETTI: Your --

THE COURT: Ms Benedetti?

MS. BENEDETTI: Yes, Your Honor, briefly.

Our motion is not intended to prevent them from making an argument that Plaintiff has failed to carry a burden of proof as to any particular issue. They are, of course, free to make that argument.

The issue here is limited to specifically referencing the failure to call any particular witness and that that would be unduly prejudicial to do that given, particularly as

they acknowledged, given the fact that they themselves have requested that this Court limit the number of witnesses that Plaintiff is allowed to present and have testify.

What I would ask the Court to do is to grant this motion much the same way as it granted on No. 12 and 13 to prevent any mention by the defense of a failure to call a particular witness in the presence of the jury until such time as the defense, if it chooses to, make the profer as to why bringing that up with respect to a particular witness is warranted, so that the plaintiff is not prejudiced by a mention of a failure to call a witness being brought to the jury's attention and then being able to un-ring that bell.

THE COURT: All right. Thank you, Ms. Benedetti.

So the Court is going to reserve on this issue. It may not be an issue It's more, I guess, proactive on that part of the plaintiff, and I understood what you're saying, but let's I want to wait to see if it comes up, and at the time it does, address whatever particular issues there are surrounding it.

It is fair game for the defense to argue that the plaintiff has not proven their case, and that may be because of a decision not to call a witness, and therefore there is no testimony about that, you know, element.

And so, that's why I don't want to just deny it outright. I don't want to lock the defense into where they

think they can't argue a lack of evidence.

So the Court will reserve on it instead.

Number 18?

MS WILHELM: I think we're agreed

THE COURT: Okay. In that case, No. 18 is granted. Number 19?

MS. WILHELM: Also agreed.

THE COURT: Granted. No. 20?

MS. WILHELM: Also agreed.

THE COURT: Okay. No. 20 is granted. No. 21?

MS. BENEDETTI: Yes, Your Honor. We are requesting that defendants be precluded from making any evidence or argument as to their affirmative defense of set off There has been -- the defense has pointed to no evidence that any payments have been made to the Plaintiff by Ms Holguin, Mr. Holguin, any insurance company on their behalf, anyone on their behalf. There is nothing to setoff. And for that reason, our motion should be granted.

THE COURT: All right. Thank you, Ms. Benedetti. Ms. Wilhelm.

MS. WILHELM: And this is properly asserted in front of the defense that the Holguins have asserted. We ask that the Court reserve on striking this defense until after that

presentation of evidence to determine whether or not we've been able to introduce evidence supporting that affirmative defense.

THE COURT: All right Thank you, Ms Wilhelm

MS. WILHELM: Ms. Benedetti, anything further.

MS BENEDETTI: Just because a defense is properly legally asserted does not mean that they have any let alone sufficient factual evidence to support that affirmative defense. They have been asked to present that evidence in discovery. They have presented none. We have submitted our motion in limine, calling them to task, and they have not presented this Court with any proper showings that there is any evidence of a set off.

Just because something is legally proper in theory does not mean that in practice it should be brought up, and our motion should be granted.

THE COURT: All right Thank you, Ms Benedetti

So it doesn't sound like there were setoff payments in this case. And so it won't be a defense if they were none; however, on the other hand, either party is entitled to illicit evidence or to use the evidence of the other party or illicit evidence from their witnesses. And I think that is what the defense is asking. They would like to keep the door open in case something does come up during trial.

And for that reason, the Court will reserve on No.

21.

No. 22.

MS. BENEDETTI: Yes, Your Honor.

We are asking that the Court prohibit the defense from bringing in any evidence, testimony, or argument, related to their affirmative defense of failure to mitigate

The party asserting a failure to mitigate has the burden of proving it. This includes the burden of proving that Plaintiff has specific alternatives available to him that would have minimized or reduced his damages.

Particularly in a case like this involving medical treatment, expert medical testimony is required to prove the failure to mitigate because determination of the causation turn on a pure medical factor, such as whether proposed treatment might be successful

In this case, Defense has not produced any evidence or expert testimony showing that Plaintiff had alternative treatments available to him, that he refused treatment, that he did not follow the advice of his doctors, that if such things happen, that such things adverse were unreasonable for him to do, and adversely effected his medical outcome.

THE COURT: Thank you, Ms. Benedetti.

Ms. Wilhelm.

MS. WILHELM: Thank you, Your Honor.

So the anticipated failure to mitigate argument at

trial is going to be this. Plaintiff's expert psychiatrist, Dr. Piel, indicated that something that would be beneficial to Mr. Simon's mental health and his recovery would be to obtain employment

This was in a report, I believe, from the end of last year, September, 2021, if I'm not mistaken, and since then, there's been no indication that Mr. Simon has attempted to procure gainful employment. This is the basis for our failure to mitigate argument. And there's a reasonable basis to believe that that testimony will be elicited at trial that is present in Mr. Simon's deposition.

And on that basis, I'm asking you to deny this motion.

THE COURT: All right. Thank you, Ms. --

MR LEID: And

THE COURT: Oh, go ahead, Mr. Leid.

MR LEID: Sorry, Your Honor I past a note to Ms. Wilhelm, but I didn't hear the whole answer.

Part of it is as well, is the failure to meditate for Mr. Simon's action to obtain employment, which would mitigate his wage loss. In addition is his failure to go back to school, which would also mitigate his wage loss. Considering he went back to retrain and reeducate himself, the less wage loss he would have. So those directly go to go to a failure to mitigate.

THE COURT: All right. Thank you, Mr. Leid. Ms. Benedetti.

MS. BENEDETTI: Your Honor, we're a little bit hampered by their response to this, given that when we filed this motion originally they gave a four-sentence response stating that their profer was that the defense will present evidence that Plaintiff regularly overexerted himself, and that Plaintiff did not follow his doctor's direction in regard to assisted devices. So this is a new claim that they're using to support their opposition to our motion. We have not had opportunity to brief it.

However, I will note that a failure to mitigate is not simply the failure to do something. It is the unreasonable failure to do something, so. And they have presented no evidence or proffered no expert testimony that Plaintiff unreasonably did not return to work to date; unreasonably did not go back to school to date

This is a very complicated situation where, you know, as much as it may be to his benefit to do this, there are many reasons why he would have not.

And so, because they have not proffered any basis for an unreasonable failure to mitigate, our motion should be granted.

THE COURT: Thank you, Ms. Benedetti.

So kind of similar to the last one. It sounds like

the defense wants to leave open the door as the possibility of eliciting testimony and, from the plaintiff's witness as to Mr. Simon, the recommendation that he get employment for his mental health, to improve his mental health

And so, for that reason, the Court is going to reserve on this issue at this time

MS. WILHELM: Thank you.

THE COURT: No. 23.

MS. KILPATRICK: Okay. This one is about derogatory comments just from generally speaking about motorcycle riders. We are intending this to submit lay witness testimony about their observations, but we want to make sure that there's not it's not generalized comments, negative comments about motorcycle riders are not responsible, or motorcycle riders are crazy, and they always ride fast, that kind of thing is what we're getting at.

So with that, we ask the Court to grant this under ER 403.

THE COURT: All right. Thank you, Ms. Kilpatrick.

Ms. Wilhelm or Mr. Leid.

MR. LEID: I'll take it moving forward, Your Honor.

THE COURT: That's right. Mr. Leid.

MR. LEID: Thank you.

So this is a difficult one from the standpoint of we don't know what the majority of the lay witnesses are going

to say. If they truly think that motorcycles are reckless, I don't know why that would be inadmissible if it's their opinion, and it goes to their credibility and their opinions about what they saw or heard on the day of the accident

I have no objection to the attorneys arguing that, you know, not arguing excuse me that disparaging motorcycle riders as a whole. I don't have a problem with that. But certainly, if a witness holds that opinion, I don't know how we could not let the jury know that they have those opinions. It goes to bias.

THE COURT: All right.

MS. KILPATRICK: I mean, the only problem is -- is that it doesn't advance any of the issues. And so, the witness may have that bias, but it's unfair for that witness to sit up there and say, I saw him going 85 miles an hour just like all motorcycle riders are crazy or something like that, but that second part doesn't matter, it doesn't have any bearing on issues. We just want to stick to the facts here: What did they see? What did they observe? And that's fair game, but the commentary is not.

THE COURT: Thank you, Ms. Kilpatrick.

One moment.

So going back to Rule of 701, Evidence Rule 701. "If a witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to

those opinions or inferences which are rationally based on the perception of the witness. Helpful to a clear understanding of the witnesses testimony or the determination of a fact at issue, and not based on scientific, technical, or specialized knowledge."

So the Court, without having heard the testimony of the witnesses, I think part of this could be subject to an objection at the time they're testifying. We don't know whether they'll use any what the terms will be and whether or not the plaintiff may want to object to the term or not. It's difficult to know without hearing the testimony.

The grant will grant the motion with respect to the attorneys stereotyping motorcycle riders or motorcyclists in their arguments but will deny it otherwise until we're able to hear the testimony, and at that time, the or I guess not deny, we'll reserve until we're able to hear the testimony

So granted with respect to attorneys stereotyping and reserved otherwise with respect to lay witnesses.

No. 24.

MS. KILPATRICK: Yes. We I mean, clearly, this is based on this is a motion in limine based on excluding prior traffic records and tickets for the plaintiff, but really it applies to both parties. And it's interesting that they agree it applies as to the defendant, but somehow it

then becomes character evidence or habit evidence when it applies to the plaintiff. And so, it's either what's good for the goose is good for the gander, or it should all be out

Because clearly, what they're trying to do is use that to show that the conduct is supposed to indict the plaintiff. You know the fact that he has had prior traffic tickets doesn't make it more likely that he was negligent or reckless here.

Just as with the plaintiff, I think it's sympathetic. It doesn't make it any more or less likely that she has more fault. So it's unduly prejudicial, it's speculative, and it merely threatens to kind of go down the rabbit hole that he has more tickets than she does and that sort of thing. So it's irrelevant to the issues the jury will determine and greatly risk substantial prejudice to the plaintiff.

THE COURT: Thank you, Ms Kilpatrick

Mr. Leid.

MR. LEID: Thank you, Your Honor.

The difference is that we are offering -- and I'll tell you what the evidence is in a second but we're offering under 406 to show habit that in fact Mr. Simon has a habit of speeding and he's been caught numerous times.

There are tickets for speeding from 2012, 2013, and 2014, all showing and documenting that he's got a habit of

speeding. He was caught on those five occasions, but fairly he's doing it more. Those were the only times he was caught. And so, therefore, it goes to the habit that he routinely speeds, which is different because they don't have any of that evidence on Ms. Holguin.

MS KILPATRICK: I just wanted to point out that Mr. Leid said, He's clearly doing it more, he's only been caught on these five instances. I think that's really indicative of how they say and use evidence. Just is just simply improper character evidence. They're looking at this exception, but under their reading of this exception, it is essentially assuming the entire rule.

Because if a habit is something that happens on five occasions, several years in the past, then there are probably a lot of us who have habits that we don't think, you know, that really we don't have. It's ER 403.

THE COURT: There were five?

MS. KILPATRICK: And 404 B, I'm sorry.

THE COURT: So there were five tickets? Is that what you're saying, speeding tickets?

MR. LEID: Four. I'm sorry, four tickets. One in 2012, one in 2013, and two in 2014 all for speeding too fast for the conditions.

MS. KOEHLER: Your Honor, may I point out

THE COURT: The last was in 2020, correct?

MR. LEID: Correct.

MS. KOEHLER: May I point out something, Your Honor?

THE COURT: Yes.

MS KOEHLER: Yeah So at the time of this collision, Mr. Simon was 26-year-old. Those old tickets are when he was a teenager

THE COURT: And so the last one was in 2014. There was a six year period where there were no tickets; is that correct?

MS. KOEHLER: Yes.

THE COURT: Okay. So this is a motion in limine to exclude evidence of traffic records and tickets. And so, in looking at 404 B, Rule 404 deals generally with character evidence not admissible to prove conduct and exceptions. And 404 B, it says that "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

And then 406, Evidence Rule 406 provides it deals generally with habit, a routine practice. "Evidence of the habit of a person or of the routine practice of an organization whether corroborated or not and regardless of the presence of eyewitnesses. It is relevant to prove that

the conduct of a person or organization on a particular occasion was in conformity with the habit or routine practice.

So in looking at this, the evidence is that Mr Simon had some speeding tickets up until 2014, and then there was a large gap of time, about six years, until the time of the accident, during which time the record is that he did not have speeding tickets.

And the Court finds that based on this record, it does not show a habit of speeding at the time of this accident.

He was older and probably more mature. He was pursuing a career as a firefighter, which may have affected his view of road safety. It's not known. But what we do know is from that record, there's not a record that he had a habit of speeding at the time of this incident.

And for that reason, introduction of these traffic tickets would not be probative but would certainly be particularly probative because of, you know, that 6 year period. But it could be prejudicial to him even though he's gone six years without having any violations. You know, a juror might say, Well, he had those speeding tickets. And I think it could cause confusion. I don't think it falls under any of these exceptions in Rule 404 B, either.

And so, for these reasons, the Court is going to

exclude the evidence about his previous speeding tickets. And so, the Court will grant the motion.

And it sounds like there's no dispute about granting this motion as to both the plaintiff and defendant?

I didn't hear.

MS KILPATRICK: Correct The defense brought their own motion with respect to traffic tickets.

THE COURT: Okay.

MS. BENEDETTI: And we did not oppose we did not oppose that in terms of we have no plan of bringing in her traffic records.

THE COURT: Okay. Thank you.

So this will be granted, and it will apply to both sides that the traffic records won't come into evidence.

All right No 25

MS. KILPATRICK: This one is basically the same as the last one He had a prior incident where he, I guess, they call it "laying down a motorcycle," and went to the hospital and had minor injuries, and they we're seeking to keep it out because it's the same character evidence they want to use it to show he has a propensity in conduct and conformity which, you know, clearly this accident was his fault and not hers or more of his fault and not hers. So we ask that this be excluded.

THE COURT: When was the accident?

MS. KILPATRICK: Oh, I believe it was 2018. I don't know if I can provide it off the top of my head.

MS. BENEDETTI: January of 2019.

MS KILPATRICK: January of 2019

THE COURT: Okay. All right Mr Leid

MR. LEID: This is further evidence, Your Honor, to support our habit of speeding and recklessness. We have a emergency room report of January 25th, 2019, that says that he was going around a corner too fast and lost control of the vehicle. That is further evidence that just because there was a ticket gap doesn't mean he had stopped speeding. He continued to speed and, in fact, had an accident. And that goes back to habit and is further proof that he was speeding.

THE COURT: Was he cited for that incident?

MR. LEID: Unknown.

MS KILPATRICK: No There's no evidence he was cited.

THE COURT: Okay.

MR. LEID: No evidence in the police report. That's a little different.

MS. KILPATRICK: Well, it would say in the police report if he was cited.

THE COURT: You're saying there is not a police report either?

MR. LEID: I do not believe that there was ever a reported accident. He just showed up at the hospital, and hospital records document his statements that it was 1:00 a m , and he lost control going around the curve

MS. KILPATRICK: And to be clear, this was -- this did not involve any other person It was just him He went around the corner too fast and laid down his motorcycle and made went to the hospital to make sure his injuries were not serious, and they were not.

THE COURT: Okay. Thank you.

Again, applying that same analysis, incorporating that analysis under 404 B and also 406, the Court finds, based on this limited directory, that this does not establish a habit of speeding there are many factors that we really don't have the details about motorcycle riding is dangerous because it's -- you only have two wheels as opposed to four and going around the corner I don't know whether it was wet or not or what the condition of the road was. There can be many reasons.

I understand the defense is offering that he was traveling too fast, or there's agreement that he was going around the corner too fast, causing the accident. And so the Court accepts that as a fact, but given 404 B and 406, the Court doesn't find that this establishes a habit of speeding. And again, there's been a long gap of time during which he

has not been cited.

And then, it's doesn't fall under it doesn't seem to fall under any of these exceptions as to proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of state or accident under Rule 404 B.

For these reasons, the Court finds that introducing this evidence would be prejudicial to Mr. Simon and not probative as to the issues in the case and could also be confusing to the jury. And so, for these reasons, the Court will grant the Motion in Limine No. 25. No. 26?

MS. BENEDETTI: Yes, Your Honor.

For No. 26 we are seeking the preclusion of testimony by two witnesses, Larry Crowley, and Monica Walker. And rather than we laid out the reasons why their testimony is irrelevant and unreliable, but I would like to briefly show a visual depiction to aid the Court

THE COURT: All right.

MS. BENEDETTI: in understanding.

This is an exhibit that was marked during Ms. Walker's testimony with an added on label. The labels were not from the exhibits, but I have added those labels on to help lay them out, and it's pointing out where the collision occurred, which is down at the bottom, and then it shows way up the road and around the corner where the purple

"X" is marked, which is where she was standing when she states she saw a motorcyclist who may or may not have been Plaintiff and his friend.

And it shows further down the road where the triangle is where she last saw the motorcyclists, after they left her view She clearly did not see the crash She did not see how fast -- she does not know whether the motorcyclists she saw were, in fact, Plaintiff Simon and his friend. She does not know how fast the motorcyclists that she saw were going further down the road where the collision actually occurred.

And for that reason, her testimony is unhelpful, unreliable, not relevant to what happened during the collision.

And then here (indicating)is an exhibit from Mr. Crowley's deposition, again with labels added by myself showing where the collision occurred, and the -- you can see the cursor that's hovering over the picture(indicating) is where he was standing when he saw motorcyclists, who he does not know whether they were Mr. Simon or his friend either. So again, did not see the crash, unreliable and unhelpful.

In contrast, we have three; we're going to have three witnesses less than 50 feet away from where the crash occurred testifying that they didn't notice anything unusual in terms of Mr. Simon's speed prior to the collision. This testimony, they actually saw the collision happen, and so

because of taking all of this into account, we believe that Mr. Crowley's testimony and Ms. Walker's testimony should be excluded. Thank you.

THE COURT: Thank you, Ms Benedetti Mr. Leid.

MR LEID: Thank you, Your Honor I also have a visual aid to share.

THE COURT: All right.

MR. LEID: This is a similar picture to that shown by Ms. Benedetti. Here is (indicating) is what was found by the prior judge's ruling during the questions of facts and trial based upon the testimony of Ms. Monica Walker and Mr. Larry Crowley, but be that as it may I'll make sure that the current judge knows what the testimony is.

Monica Walker lives in the neighborhood She's approximately at point one. She's lived in the neighborhood since '97 She walks this road constantly, so she's well aware of the speed of traffic at about 40 miles an hour as they pass her on her walks.

She hears the scream of motorcycles going very, very, fast behind her, she looks behind her, and she sees two motorcycles here. They scream passed her, going far and away above the speed limit, weaving in and out of traffic, passing cars and they reach this corner.

She's so concerned about how fast the motorcycles are

going. She's worried there's going to be an accident --

THE COURT: One moment, Mr. Leid.

Ms. Abhaya, where did he drop off?

The Court REPORTER: "She's worried there's going to be an accident. Somebody's going to be.

MR LEID: Sorry, I'll speak up

The Court REPORTER: Thank you.

MR. LEID: And she loses the motorcycles as she round this corner, and she loses sight, but that's incidentally right where Larry Crowley Larry Crowley has also lived in the neighborhood for a long time, and he walks this road a lot, and he is aware that cars generally travel about 40 miles or so on his walk.

He hears the motorcycles, he sees them screaming their weaving in and out of traffic He believes going around 80 to 90 miles an hour when they passed him and into a trailer where the accident happened, consistent with what our experts say that Mr. Simon was going about 70 miles an hour when he hit Ms. Holguin. So these eyewitnesss absolutely identify the motorcyclists as Mr. Simon and his co-rider, Mr. Lawson.

When they make their way to the accident scene, both of them speak with law enforcement at the scene. Both of them identify the motorcycle involved in the accident as one of the bikes that went screaming by them, and both of them

indicate they're now aware of any other motorcycles that passed them between the time they saw them speeding and the time of the accident.

So there is certainly sufficient evidence to support the testimony of both Ms. Monica Walker and Larry Crowley.

THE COURT: All right Thank you, Mr Leid

Anything further, Ms. Benedetti?

MS. BENEDETTI: Just briefly, Your Honor.

They are certainly entitled to have their experts testify as to their reconstruction, but in terms of Mr. Crowley and Ms. Walker's ability to testify about what actually happened during the collision, they did not see it.

They, in fact, testified that they could not conclusively state whether or not Mr. Simon and his friend were in fact the motorcyclists who they saw

Ms. Walker estimates the speed swung wildly. Their testimony is not reliable or relevant It is unduly prejudicial, and it should be excluded.

THE COURT: All right. Thank you, Ms. Benedetti.

So looking again at Rule 401, which provides that relevant evidence means evidence having any tendency to make the existence of any fact that is of a consequence to the determination of the action more probable or less probable than it would be with without the evidence.

And then 701 providing if the witness is not

testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding of the witness's testimony or determination of fact at issue and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So it seems that under Rule 401, this is certainly relevant evidence, because one of the issues at stake is whether or not Mr. Simon had comparative fault in the accident. And then these witnesses are laypersons. They will apparently testify about speed, and it does seem to fit within Rule 701 that it's rationally based on their perception, and that it will be helpful to a clear understanding of their testimony as to their estimates of speed.

With respect to a 403 Balancing, it doesn't seem that it's really prejudicial because it sounds like the Plaintiff's position is that these weren't the same people, perhaps. I can't tell. But, when you weigh the probative value of this evidence as opposed to the prejudice that it might cause, the probative value does outweigh any potential prejudice.

I think that the plaintiff's motion really goes to the weight that the jury should give this evidence, and the

plaintiff is going to have a chance to cross-examine each of these witnesses as to what they observed and whether or not these are the same two motorcyclists.

And so, for all these reasons, the Court is going to deny the motion in limine as to the testimony of Larry Crowley and Monica Walker

Let's see what time it is.

Let's take our noon recess at this time, and we will reconvene at 1:30.

MS. BENEDETTI: Thank you, Your Honor.

MS. KILPATRICK: Thank you, Your Honor.

THE COURT: Thank you.

We will see you then.

(Court at recess )

AFTERNOON SESSION

THE COURT: Will the parties please make their appearances again?

MS. KOEHLER: Yes. Karen Koehler, Lisa Benedetti, Shannon Kilpatrick for the plaintiffs.

THE COURT: Good afternoon.

MR. LEID: Rory Lied and Lucy Wilhelm for the Holguins.

THE COURT: Good afternoon.

Welcome back, everyone. I hope you had a nice break. So turning back to the plaintiff's motion in limine. We're on, I believe, No. 27.

MS KILPATRICK: That's correct, Your Honor But before we dive into that I just wanted to -- I hate to keep harping on this, but Mr Leid mentioned he has specific authority about the -- our voluntary dismissal of Mr. Holguin. And it would be nice if we could get a commitment from him when we can receive that so we can respond and get this issue dealt with before opening statements.

MS. KOEHLER: Before voir dire.

MS. KILPATRICK: Oh, yeah, before voir dire tomorrow.

THE COURT: Sounds like a good plan.

I would ask the parties to work together on that

MR. LEID: Your Honor, we'll have that in the next 30 minutes

THE COURT: Okay. Thank you. I know you've been in this hearing.

No. 27.

MS. BENEDETTI: Plaintiff's 27, we request that Defendants be prohibited from introducing any of the reports from any of Defendant's experts with the exception of the two CR 35 examiners. These reports are inadmissible hearsay. They do not fall into any business records exception. The

witnesses will presumingly be testifying live. And in addition to being hearsay, it would be cumulative and highly prejudicial and likely to confuse the jury with these highly technical and lengthy expert reports

So we would move that be excluded.

THE COURT: All right Thank you, Ms Benedetti

Mr. Leid.

MR. LEID: Yes, Your Honor.

We agree as long as it's reciprocal. So the entire reports shouldn't come in, but, you know, some of the things from the reports can come in, you know, diagrams or math problems or whatever it's going to be. Certain things like that are certainly relevant for the jury to see, at least as a demonstrative. So I don't think there should be an exception they shouldn't come in any of them And so, we agree as long as it's reciprocal.

THE COURT: Ms Benedetti?

MS. BENEDETTI: That is fine with us, and we agree that, you know, certainly to the extent that an expert is using an image or a diagram as a demonstrative and is there to testify and to discuss it, you know, we're fine with that.

THE COURT: Okay. Thank you.

MS. KOEHLER: That takes us back to the issue of until that foundation is laid, they should not be used in opening statement.

THE COURT: All right. Thank you, Ms. Koehler.

All right. So the Motion in Limine No. 27 is granted. No 28?

MS. BENEDETTI: Thank you, Your Honor.

We are requesting that Defendant's forensic experts not be allowed to be referred to as "independent," "IME" -you know, "independent psychological," "independent record review" anything along those lines.

These forensic experts are not independent. You know, CR 35 allows the defendant to conduct such an examination, but the forensic experts selected by defense is selected by them. And there is even a procedure for the Court to appoint what would be an independent expert witness to do an examination, but that is not what happened here

Referring to such forensic experts as an independent would be confusing, misleading, unfairly prejudicial, and should be prohibited.

THE COURT: Mr. Leid.

MR. LEID: And I guess, you know like I said the remedy should be that we agree how we're going to call them, and perhaps it should be as simple as "Plaintiff's forensic experts," Defense's forensic experts," as long as we're in agreement, that's fair.

THE COURT: All right.

Ms. Benedetti, you suggested calling them either "forensic experts" or "medical experts." Does that seem reasonable to you?

MS BENEDETTI: Yes Well, the "Defense experts "

THE COURT: Yes.

MS BENEDETTI: As opposed to "Plaintiff's experts "

THE COURT: Exactly.

MS. KOEHLER: But that wouldn't apply to the treating physicians who were not hired for purposes of testimony?

THE COURT: That's correct.

Okay. So the Court will grant that motion, but with the exception that the parties can refer to their experts as their "medical experts" or their "forensic experts."

No. 29.

MS BENEDETTI: Yes Plaintiff's move to preclude any undisclosed opinions of Defendant's experts.

The Court rules provide for the timeline for disclosing such expert opinions. Anything that has not been disclosed to date is untimely and should be excluded.

Mr. Leid, thank you.

MR. LEID: Yeah, I think we generally agree with that. But there certainly is a difference between an opinion and a fact that they rely upon. So as Your Honor's aware, there certainly is going to be testimony in evidence that comes into the Court that may or may not be new that the

expert can rely upon that they didn't know about at the time. But that's different than an opinion, so I want to make sure there's a distinction there.

THE COURT: Okay So the Court will grant 29 as to opinions as opposed to facts.

I think that you brought up in your briefing that you thought maybe an issue of this sort could come up during cross examination. Is that what you're talking about?

MR. LEID: Yes, Your Honor.

THE COURT: Okay.

All right. No. 30.

MS. BENEDETTI: Yes, Your Honor.

This is an extension of No. 29. We are specifically

asking that the Court prohibit Defense expert Michael Arrigo from testifying regarding Plaintiff's future care needs or the reasonable costs of any of his future care.

First of all, as to future care needs, he is completely unqualified to testify to that. He's not a life care planner. He's not a disability manager or a case manager. He's not a rehabilitation counselor. He was not hired in this case to be an expert to create a life care plan. Both parties have experts that have created life care plans. This would be completely outside of the scope of his expertise to be able to testify to that.

With regard to the cost of future care, while he

presumingly would be qualified to testify about that, he has to date disclosed zero opinions with regard to those specifics.

He authored a lengthy report That report talks entirely about Plaintiff's past medical care and the -- what he believes to be the reasonable costs for that past medical care. Nothing in there talked about any future care needs.

He didn't do an assessment of the future care needs that were opined by either Plaintiff's or Defendant's life care plaintiffs. And when asked about this at deposition, he basically had zero opinions about this. And so if he were to on the stand try to opine about the costs of future care needs, this would be an entirely undisclosed opinion and should be prohibited.

THE COURT: All right Thank you

Mr. Leid.

MR LEID: I don't think we really disagree with this. Your Honor, it was actually counsel who asked him all the questions in his deposition on this issue. We never disclosed any opinions from Mr. Arrigo on this.

THE COURT: Okay. You were anticipating calling a different witness for this purpose?

MR. LEID: Yes, Your Honor.

THE COURT: Okay.

MS. BENEDETTI: I would not have spent so much time

talking about it if I knew that they weren't going to oppose it because they actually specifically asked to have our motion denied, so I'm sorry to have taken so much time talking about an issue that they were not going to oppose

THE COURT: All right. The Court will grant No. 30. No 31, I wasn't sure If you could address on 31 I was looking at your agreed-case statement. Doesn't that sort of touch on this issue, or can you talk about that a little bit, Ms. Benedetti?

MS. BENEDETTI: Yes, Your Honor.

I think that the issue I mean, we brought this motion because, again, you know, we felt that, I mean, it kind of says exactly what it's trying to achieve. The Court has already decided, as a matter of law the defendant is liable, and the defendant should not be permitted to challenge or question, or deny it or claim that she admits liability or concedes liability because that is not what happened. What happened was that she did, in fact, contest liability, and it was found as a matter of law brought before the Court.

In their responses to our motions and even here today, Defense counsel has stated that they have an intention -- that defendant should be permitted to nonetheless testify to her thoughts or her feelings, including apparently her feelings about whether or not she was or is or continues to

be liable as a matter of law in this case, and we're simply saying that that would be improper, it would be contrary to this Court's established finding, and should not be permitted

THE COURT: All right. Thank you, Ms. Benedetti. Mr Leid?

MR. LEID: So I guess our issue with this, Your Honor, is the combination of 31 and 32.

So there is no question that the Court has found that Ms. Holguin is at least partially at fault for the accident. It is the law of the case, and it is what it is. But because there's comparative fault at issue, Ms. Holguin can certainly testify about what happened the day of the accident as the defendants intend to prove our burden on comparative fault.

So I'm not quite sure because in conjunction then on 32, what they want is anything in the prior pleadings by the parties should be excluded We agree, that's fine We can exclude the prior statements of the attorneys and people in the pleadings that have been filed here. So I'm not quite sure how those two intertwine.

But we have no objection. We are not going to argue that she's not at fault because the Court has already found her to be at fault, at least partially, so I'm not sure what's happened.

THE COURT: Okay. And the neutral statement of the

case says that the Court has already determined this Kelly Holguin was negligent, so that seems to put that issue to rest.

So are you saying, Mr Leid, that you do not object to these motions? I mean, it sounds like you're having difficulty figuring out what they mean or what is being argued, I guess. Is that what you're saying?

MR. LEID: Yes.

THE COURT: Or the purpose of them.

MR. LEID: In the broader sense, I absolutely understand what the law of the case is. We are never going to argue against the law of the case, but we're certainly going to argue that Mr. Simon was at fault, and there's a proportion or share or whatever that is.

But we agree that you know the prior statements of the parties and attorneys in pleadings, that's fine, we can exclude all that and have a cleaner trial, so I'm not quite sure beyond that.

THE COURT: Okay.

So the Court will grant 31 and 32, but on the issue, I think we should that this does not preclude the defendant from arguing comparative fault issues.

Is that what you're saying?

MR. LEID: Yes, Your Honor.

THE COURT: Okay.

Ms. Benedetti?

MS. KOEHLER: Your Honor.

THE COURT: Ms. Benedetti.

Or was that Ms Koehler? Sorry

MS. KOEHLER: Your Honor, can I just ask for clarification on this one little tiny issue?

THE COURT: Yes.

MS. KOEHLER: Mr. Leid has said repeatedly in this argument that he would like to claim that Ms. Holguin I don't even know if I'm saying her name right how do you say her name?

MR. LEID: Hole-gain(ph).

MS. KOEHLER: Hole gain(ph) is only partially at fault. That's not the Court's ruling. The ruling is that she was negligent and liable She's negligent at fault The question is, how much at fault also is the plaintiff?

So I don't think that the saying "partially at fault" is proper in this case. That's not reflective of the Court's prior ruling.

THE COURT: All right.

MR. LEID: And I would say that's not apples to apples, Your Honor. I should be able that argue my case, and my case is that Ms. Holguin is only partially at fault, and the other fault is formed by Mr. Simon. So I think that Ms. Koehler still gets to argue her case, but so do I.

THE COURT: I understand.

Okay. So the Court will grant 31 and 32. The defendant is not precluded from arguing that he is, I guess, how that he is only partially at fault or that she is only partially at fault. Does that state -- is that fine? You can follow that ruling?

MR. LEID: Yes, Your Honor.

THE COURT: Okay.

All right. No. 33.

MS. BENEDETTI: Yes, Your Honor.

MR. LEID: So oh, I'm sorry, go ahead.

MS. BENEDETTI: For 33, we are requesting that the Court preclude Defendants from bringing up Plaintiff's unrelated childhood history of mental health treatment, including any medication use or other preexisting conditions

And we've listed specific proposed trial exhibits that Defendant has proposed that seem to try to bring these issues into the case, such as a previous diagnosis of bipolar disorder, as well as ADHD medication prescribed, his prior motorcycle incident that was previously discussed in the -in our prior MIL, and the snowboarding incident. None of these have any bearing on any issue to be decided.

Defense has no evidence that any of these prior incidents caused him any injuries that he was continuing to suffer from when the collision occurred, or that made him

more susceptible to injury or reinjury, that any prior preexisting conditions were lit up by the collision.

And as far as the prior childhood history of ADHD and the bipolar, they have no expert to connect that prior remote history to anything that Plaintiff is suffering from -- or has suffered from, and is suffering from, and will continue to suffer from as a result of this collision.

Expert medical testimony is necessary to be able to make this connection. They don't have it; therefore, they should be precluded from introducing any such evidence or testimony.

THE COURT: Thank you, Ms. Benedetti.

Mr. Leid.

MR. LEID: So what I heard this morning in argument is that Mr Simon has significant ADHD from childhood So I'm not quite sure how that comes in, but the other stuff does not So I'm of the opinion that that's fine if we're not going to include any of his childhood mental health issues, and then ADHD should absolutely be off the table as well; otherwise, if you're going to bring that, then everything comes in.

THE COURT: Ms. Benedetti, on that issue?

MS. BENEDETTI: They have to establish a connection between those prior conditions and any argument that they're going to make in this case, and they have to establish that

through expert testimony, and they haven't done that.

MS. KOEHLER: Well, let me ADHD is relevant. It is connected by our own experts. That is not a contested issue in terms of his background, what he has, how long he's had it, why he's chosen this profession, and that he still has it

The issue of the bipolar is a real red herring because apparently he was diagnosed in Florida as a child, which was determined to be in this diagnosis.

The plaintiff, there are no psychologists or treating physicians being called. The only psychological witness that is being called by the plaintiff is a forensic who Mr. Leid deposed or someone from his office, I can't remember. And she also confirms as do the other more recent treating physicians that that was a misdiagnosis He does have ADHD He does have -- and has had that for a long time.

THE COURT: All right Thank you, Ms Koehler

Mr. Leid?

MR. LEID: The accident had nothing to do with his ADHD. So I'm not sure how that is at all relevant that he had it as a child, and he continues to have it. Seems to me to be completely irrelevant and not likely to help the jury and any decisions in this case.

But he certainly was diagnosed as having a bipolar disorder by multiple medical providers who we have the

records for.

So if you're going to get into his childhood mental health issues, the bipolar disorder is right there for many years that he also sought treatment for along with the ADHD

THE COURT: Ms. Koehler or Ms. Benedetti, on the issue of the ADHD, the relevance is his choice of employment would be physical activity over a stationary job?

MS. KOEHLER: That's what I meant. I mean, it's primarily a person who that has ADHD for a long time as a child. The way that they coped with, you know, not doing well in school is that they excelled in athletics, and that's where their identity is. His identity is as an athletic, rigorously athletic individual, and that's what the chosen job is.

THE COURT: All right

MS. KOEHLER: Which fits in a ADHD person very, very, well versus a desk job, which is what the defense is trying to say. Well, he should just have a desk job.

THE COURT: Okay.

MS. KOEHLER: That's why it's relevant. The bipolar, the defense has no expert that will say that he has bipolar. There's nobody here that'll say he has bipolar now or that he had it in the future. And the fact that something is an artifact and an old, you know, 25 year old or 20 year old medical record doesn't make it admissible.

THE COURT: Mr. Leid, on relevancy of the bipolar. How do you see that it's relevant?

MR. LEID: Well, I think it's relevant in the sense you're going to allow in the ADHD Because he was certainly diagnosed of having a bipolar disorder, none of the providers ever have any records we're aware of that he was ever cured of it, and allowing the jury to hear about only the ADHD is prejudicial and potentially creates sympathy for the jury that he suffers from something that you don't need to have. He liked to be athletic. You don't need to include ADHD in it.

THE COURT: All right.

So in looking again, the Court goes back to relevance under 401 is means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

It seems that the ADHD is relevant to the issue of employment because that is an issue in the case, and it sounds like that's something that the defense plans to argue. That he did not seek employment as recommended by a mental health expert or treatment person. So I think that is relevant under 401.

On the bipolar, it doesn't seem that it's been articulated why it's actually relevant. It sounds like it

was a childhood diagnosis that later was retracted. And this accident happened when Mr. Simon was an adult. And it just hasn't been articulated how the bipolar, that whole bipolar diagnosis, would be relevant

And then, so then going to 403, if the Court allowed it in, the Court must weigh or in deciding whether to allow it in, the Court has to look at probative versus prejudicial. And it just doesn't seem probative of anything, at least from the record that the Court has at this time. And if the Court allows it in, I don't know what the jury's going to do with it without any direction. There could be some prejudice to Mr. Simon if that's just thrown out there that he was diagnosed as being bipolar.

And so, for these reasons, the Court is going to grant the motion in limine with respect to unrelated childhood history of mental health treatment and medication use

The Court will allow the plaintiff to offer testimony about the ADHD diagnosis because it relates to this employment issue and why he selected a job that involved physical activity as opposed to a desk job.

So that will be the Court's ruling on 33.

No. 34.

MS. BENEDETTI: Your Honor, just briefly as a clarification on 33. There were a couple other incidents in

his records, such as the motorcycle incident where he laid down the bike and some snowboarding incidents in his records where they were limited in nature that he recovered from them, and there was no indication of any continuing issues from there, and we request that those also be excluded as prior incidents

THE COURT: All right. Thank you. Mr. Leid?

MR. LEID: Well, we do object, as previously stated in the motorcycle accident. Without waiving that objection, we have no opposition to the others.

THE COURT: Okay. Thank you, Mr. Leid.

So the Court will stick with its earlier ruling and that analysis on the motorcycle accident. And since there doesn't seem to be relevance on these two issues with respect to injuries, the motorcycle accident, and the snowboarding accident, the Court will grant the motion with respect to those two events as well. No. 34.

MS. BENEDETTI: Yes, Your Honor.

34, we are asking the Court to preclude the defense from inquiring with Plaintiff's life care planner and vocational expert, Tony Choppa, about a prior lawsuit that he was involved in. He was involved in an employment lawsuit. An employment lawsuit was brought against him more than ten

years ago. And we included, which I'm seeing here today, but we included several pages of questioning that occurred at deposition about it that go into the nature of the lawsuit, but more importantly, that lawsuit resulted in a confidential settlement.

And so, he is precluded by that settlement from talking about the details of what went on in this result lawsuit. And so it is irrelevant to this case. And it should not be permitted for the defense to attempt to collaterally attack him by asking him questions on this lawsuit.

It basically puts Mr. Choppa between a rock and a hard place, where he's being asked, he's potentially being asked questions about this old lawsuit, which he would very much like to be able to respond to with substance, but he can not because of the settlement-confidentiality agreement that he's subjected to So all that it would do is raise a specter of questions that he will not and can not answer, and it would be distracting and confusing, and misleading to the jury and should be prohibited.

THE COURT: All right. Thank you. Ms. Benedetti. Mr. Leid?

MR. LEID: Thank you, Your Honor.

Mr. Choppa was sued for sexual harassment by one of the employees at his own clinic. That is certainly material

and relevant to his credibility that he bases upon his ownership and training of his employees at his clinic.

The fact that he paid off hush money so he could get a self indulgent confidentiality agreement doesn't change anything. There's been no confidentiality agreement that's been produced and no way that he can testify to it, so he doesn't have to talk about the fact that he allegedly sexually molested one or more of his employees.

If you're going to allow in the evidence of 20 years ago for Mr. Arrigo, we get to get in the evidence on Mr. Choppa.

THE COURT: Let's see. Expert Tony Choppa, what is his testimony about?

MR. LEID: He's --

MS BENEDETTI: He's a life care planner He's a vocational expert, so he's testifying as far as -- well, he's testifying about the reasonable costs of plaintiff's past medical care, future medical care, and the reasonable future medical care needs he will need over the course of his life.

THE COURT: Okay. Thank you.

MS. BENEDETTI: And if I may just briefly respond? The fact that a prior sexual harassment lawsuit brought by an employee is not in and of itself credibility evidence. It's not evidence of truthfulness or untruthfulness in stark contrast to the very specific findings by the Court against

Mr. Arrigo. The two situations are apples and oranges.

THE COURT: There wasn't a criminal case or anything like that?

MS BENEDETTI: No, Your Honor

THE COURT: Okay.

Mr Leid, how is this

MR. LEID: Yes.

THE COURT: relevant to his credibility?

MR. LEID: So there wasn't a criminal case in Mr. Arrigo either, Your Honor.

THE COURT: No.

MR. LEID: And ultimately, Mr. Arrigo disputed those allegations. He just didn't enter into a Trumpian-confidentiality agreement to protect himself moving forward, so he never had to talk about it like Mr Choppa did.

So that is relevant material, and the allegations were made by an employee of his. He certainly can deny them, but the fact that he purchased himself a confidentiality agreement does not get him out of explaining this.

THE COURT: All right.

Thank you. One moment.

MS. BENEDETTI: Your Honor, I would just like to briefly note that we don't appreciate the bringing of politics into this and making references to "Trumpian," "hush

money." I mean, we are in the business of civil lawsuits and personal injury. We are all quite familiar with how these cases go down and the fact that many of them, many of them result in settlements, many of them result in confidentiality agreements for a variety of reasons, and that's what needs to be you know, what needs to be considered here is the issues before us and not unnecessary political references.

THE COURT: So, in looking at Evidence Rule 404, that rule talks about character evidence not admissible to prove conduct. And 404 B talks about evidence of the crimes, wrongs, or acts are not admissible to prove the character of a person in order to show action and conformity therewith. It may, however, be admissible for the other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident

That none of those exceptions seem to apply in this case since he's being called as a life care planner expert, life care expert.

Looking at 609, that really that deals with impeachment by evidence of conviction of a crime. And this was not a crime. It sounds like it was a sexual harassment suit.

So under 404, it just doesn't seem that -- and if we look at habit or 406, which was also brought up, a similar issue on a different witness, that doesn't apply in this

instance.

Is there any other rule you think it would come in under, Mr. Leid?

MR LEID: Under 608, Your Honor

THE COURT: 608, one moment.

Yeah So 608 B provides that specific instances of conduct of a witness for the purpose of attacking or supporting the witness's credibility may not be proved by extrinsic evidence; it may, however, in the discretion of the Court be probative of truthfulness or untruthfulness be inquired into on cross examination of the witness concerning the witness's character for truthfulness or untruthfulness or concerning the character. That's for another witness.

So Mr. Leid brought up what about a Ariggo? And in looking at these two in the case of the witness Ariggo, the Court's findings, the Court in California, their findings related to credibility, and that was the reason that the Court decided to allow the plaintiff to inquire about that that case, as it went to his veracity.

Whereas here, because it's a sexual harassment case it doesn't mean that there wasn't wrongdoing, but it's a different type of case altogether. There hasn't been anything offered in the record that he did anything in violation of the Court's order or anything sneaky. It just seems to be a very, you know, apples and oranges, and

although sexual harassment is a serious allegation, and it sounds like there was some sort of settlement in the case, it's generally not viewed as something involving credibility or, you know, an act of dishonesty And so, with this record that the Court has, there just doesn't seem to be a basis to allow impeachment of Mr Choppa on that incident

And so, for that reason, the Court will grant the motion in limine.

THE COURT: No. 35.

MS. BENEDETTI: Yes, Your Honor, this is a motion to preclude the defense from introducing evidence specifically related to certain trial exhibits that they've proposed, which are exhibits 649 through 654, all of which are articles, that they have described as articles on foot drop.

What these articles are, with the exception of one, are basically tough cases filled with stories about other people who have had foot drop for one reason or another, a wide variety of reasons, you know, ranging from a congenial birth defect to an injury, all sorts of reasons, and we are seeking exclusion of these. Basically, these are akin to asking hypothetical questions that are based on unsupported hypotheticals, hypotheticals being widely, widely criticized methods of cross-examination.

There has to be a factual basis for presenting hypothetical questions to a party's expert. And in this

case, what their basically just trying to do is put forward these examples of these feel good stories about people, particularly people who were athletic and many of whom continue to be athletic Examples being a person who is on the quest for Para Olympic gold, another person who was a football player, another person who was another football player, a Philadelphia Eagle and so he competed in the NFL. A person who was a marathon runner. And all we have about these people are these short, tough pieces. There's no demonstration. There's no proper that these people's circumstances are at all comparable to the plaintiff.

And each person who has foot drop has it for a variety of reasons; and not only does Plaintiff have foot drop, he has many other morbidities many other conditions that were caused by this catastrophic collision So, to put forward these pieces about other people whose conditions are not an issue in this case, whose conditions are not fully known because all we have are these short pieces giving brief descriptions of them.

Bringing them in is irrelevant. It's more likely to mislead and confuse the jury. There's no basis for asking there's no reason for any of the experts who might be asked about this to even know anything about these people or how -anything about these people or how their circumstances are or are not comparable to Plaintiff's. And, frankly, the only

reason to bring these in is to give an emotional impression that, well, if these people can go and run a marathon, if these people can go and win gold at the Para Olympics, why can't Simon? And that's an improper purpose There's no relevance or basis, and they should be excluded.

MS KOEHLER: May I ask, Ms Benedetti, can you please address the collateral nature of this evidence?

MS. BENEDETTI: I mean, yeah, well, it is collateral because, I mean, these are people who are not even parties to this case. There's no evidence in the record related to these people. Nothing about their condition is an issue of relevance or an issue in dispute in this case. It is completely collateral. It brings in irrelevant it's basically going to lead to a sideshow about totally different people who have nothing to do with what happened here or and don't even -- none of the people in this case know these people, none of the people who are subjects of these pieces know Plaintiff or Ms. Holguin or anyone who's involved here, and none of them has been viewed as witnesses. So, it basically is just bringing in a sideshow to this case and should not be brought in.

THE COURT: All right. Thank you, Ms. Benedetti.

Mr. Leid.

MR. LEID: Thank you, Your Honor.

One of the issues, in this case, is going to be the

scope and the permanency of Mr. Simon's foot drop. And so I absolutely have the right to cross examine the experts on foot drop and recovery, and that there are people who are very successful in life with permanent foot drop I would be astounded if any of these experts didn't know some of these names, like the former Washington football quarterback, Alex Smith. If they are in any way related to orthopedic injuries for foot drop, they would absolutely know about his significant perineal injury that he suffered during a football game, and he came back and played a couple, I think one or two, NFL games as a quarterback wearing a (indiscernible) because of his foot drop. If they don't know about that, then they don't know about anything to do with foot drop.

So I absolutely should be able to, whether they know about him, that there are people who are successful and they try to deny that they are, then I should be able to provide evidence of exactly why they're wrong to attack their credibility.

In fact, there are pro athletes who have permanent foot drop and are successful. So if they don't even acknowledge things like that, I absolutely get to cross-examine on those issues.

THE COURT: So your intention is to use these cases in your cross-examination of Mr. Becker?

MR. LEID: For sure, with Mr. Becker and perhaps others, depending on what they say or don't say on the stand. But Mr. Becker holds himself out as essentially a medical doctor who knows all about all, and I've cross examined him many times, so I'm aware of what he's going to say. And if he does not know about these people, particularly Alex Smith and several others, he's not telling the truth. So I should be able to cross examine him to show either he has no knowledge on the subject because he doesn't know about people who are successful, or he has to admit, yes, there are people that lead successful lives with permanent foot drop.

THE COURT: All right. Thank you, Mr. Leid.

Ms. Benedetti.

MS. BENEDETTI: Your Honor, of course, they are within their rights to cross examine our experts, but the specific documents that they are posing to bring in are extremely prejudicial, and bringing in this collateral information that has nothing to do with the plaintiff himself, could be distinguishable from his circumstances, though, frankly, we have no way of establishing that because there's no evidence in this record about what these people's conditions are.

That there are ways for the defense to test the credibility of our witnesses, but this is not a proper one.

THE COURT: All right.

The Court is going to reserve on this issue. It sounds like the defense plans to use these materials in cross-examination, which means they typically wouldn't even be offered as exhibits but would just be used as reference during cross-examination, but we will see.

For these, the Court is going to reserve at this time, and if they move to offer any of these during trial, then we'll take it up at that time.

So that, I think, we've gotten through the first of the plaintiff's motion in limine, but I believe, let's see, so we have some additional motions.

MS. KILPATRICK: Yes. There's a second motion, No. 36, and then there's two additional ones.

THE COURT: So I have the Plaintiff's Second Motions in Limine Is that the one?

MS. KILPATRICK: Yes, that's the one.

THE COURT: Let's move on to that one

Go ahead --

MS. KILPATRICK: That would be me.

THE COURT: Ms. Kilpatrick.

MS. KILPATRICK: This has been covered mostly before. We're asking the Court to preclude all references to Defendant Holguins' children because it has nothing to do with how the accident occurred, how the collision occurred, comparative fault, or Braeden Simon's damages.

In particular, we're concerned about the reference that Defense Counsel made in their opposition is that she wants to be able to testify that her daughter was in the backseat and was scared That's highly prejudicial It's not relevant to any issue that's in the case. So on that basis, the Court already ruled on the photographs, but the additional stuff is what we're asking the Court to look at now, and we ask that be precluded.

THE COURT: And on the photographs, that was the one where you switched your position

MS. KILPATRICK: Yes. Yes.

THE COURT: -- and decided not to oppose?

MS. KILPATRICK: Exactly.

So the photographs, are not an issue anymore, and it's just this particular testimony about her children and any reference to her daughter being in the backseat and that she was scared, and that she's on her way to pick up her son from school.

THE COURT: All right. Thank you.

Mr. Leid.

MR. LEID: Yeah, we have no objection to excluding the fact that her daughter was scared; however, a couple of reasons why I think the rest of it is admissible. The fact that she was on her way to pick up her son is certainly relevant because it explains the fact that she has driven

this route many, many times. I forget how many, but many. It's the way she took her son to school and then went to pick him up every day. So she was very familiar with this intersection and speeds of traffic and all of that All of that is certainly relevant to oral argument that she's used to cars traveling the speed limit, and she knows what it looks like, and she took a left. In fact, this guy was flying so fast, that's why.

Also, I think it's relevant that her child was in the car because, arguably, when we have children in our cars, we are more attentive to safety concerns and being a safe driver because we have our child onboard. So I think all of that is relevant and material and goes to the issue of the case.

THE COURT: Thank you.

Ms Kilpatrick

MS. KILPATRICK: I was just going to say that this -I think this is an example of how they plan to try to undermine the Court ruling that she's been found liable by implying that she was paying more attention because she's got a child in the back. That's no bearing because she has already been found liable. So it's I know it's a hard line to draw, but the danger of unfair prejudice to the plaintiff outweighs any of this stuff.

There's no dispute she's very familiar with this route. It's right by her house, so of course, she's driven

it every day. It doesn't need to be said that she's driving it to pick up her child. The speeds of traffic, again, there's going to be lots of different testimony about that, that's fine If she wants to testify that she is very familiar with the area and it's just right bear her neighborhood, and she drives it regularly, and she's familiar with the speeds that people travel, that's fine. But it's the fact that she was going to pick up her child and that her child was in the back, and somehow that means she was being more attentive, is not relevant. It's not it's unduly prejudicial and potentially will cause confusion with the jurors because it's going to go directly against what the Court has already found.

THE COURT: All right. Thank you.

MR LEID: If I could be heard?

THE COURT: Yes, go ahead, Mr. Leid.

MR LEID: I'm not so sure when having children became prejudicial. I completely am missing the fact of how referring to her children is confusing or prejudicial in any way. I just can't think of a single way that because she has children, it's prejudicial to her case or it's confusing to the jury. The jury is going to know that the child wasn't driving. It was only her. So I'm missing absolutely why this would be admissible.

THE COURT: All right. Thank you. So in looking at

this with respect to the scared, sounds like -- or Mr. Leid has indicated they will not offer her opinion that her daughter was scared. And it does call for speculation anyway on her part

The other things that Mr. Leid wants to introduce are really kind of setting the scene, and that's pretty typical on a case about where the accident happened and the route and that sort of thing.

And I understand what you're saying, Ms. Kilpatrick, about sort of questioning the Court's earlier ruling on negligence on the part of Ms. Holguin, but on the other hand, I think it is important they're able to at least lay out what happened. And these things talking about going to pick up her son, her knowledge of the neighborhood, aren't necessarily prejudicial I don't think they are prejudicial I guess it's sort of a -- it is a difficult question when it comes to her decision to make that turn

Mr. Leid mentioned she knows the speeds. But on the other hand, we are talking about whether or not Mr. Simon has any fault in this, and speed is an issue, and so it is relevant and not particularly prejudicial. The jury is going to know that she was found to be negligent by the court, and I think her observations are probative and not when you do the balancing. Under 403, I think the probative value of this testimony outweighs any prejudicial value.

It also does seem to be relevant under 401 because 401 is pretty broad. It says, "Evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable "

And so for these, the Court is going to grant the motion with respect to her observations or her statement that her daughter was scared and will otherwise deny the motion.

MS. KOEHLER: Your Honor, may I ask for clarification?

THE COURT: Yes.

MS. KOEHLER: The only part that I'm not 100 percent sure I understand, and I just want to make sure that I understand it. Is Mr. Leid's statement that she's going to testify that because she's traveled that area, she knows what speeds are? Is that correct?

And in this case, she did not observe Mr. Simon. She has no testimony about his speed, and so it seems to me that by allowing her to speak about speed when she has no knowledge of speed, in this case, is completely irrelevant.

And that was the basis for the summary adjustment. She didn't see him, she didn't hear him, and she was the favored driver.

THE COURT: Mr. Leid.

MS. KOEHLER: She was there to be seen. It was found as a matter of law.

THE COURT: Okay.

MS. KOEHLER: So it seems like that goes directly against an existing order.

THE COURT: Mr Leid

MR. LEID: Thank you. So there's no dispute what our defense is Our experts have already been deposed and given their reports. And according to our experts, Mr. Simon was going so fast, essentially, he covered two football fields in what normally someone going 40 miles an hour would cover in one.

So during the same amount time, she looked down, she didn't see anybody. She knew about where to look based on the speed. She didn't see him because he was another football field behind, but he covered that same distance of one football field in two football fields because of how fast he was going.

So that's why it's relevant That is what our experts have all said, that it is, therefore relevant, material that she looked to where she would expect to see a car or a motorcycle. She didn't see one because it's about a football field, at 40 miles an hour. So it is relevant and material what she's used to seeing, and it helps to explain why she didn't see him because he was over 300 hundred feet passed her.

MS. KOEHLER: Your Honor, if I may, this is one of

the problems with a late disclosure of the experts. They were not used in the summary judgment motion, and so what we have, you have, is a binding court order based upon the facts that she saw nothing, she heard nothing, and she, she, she turned in that they were there to be seen. That was the Court's order The fact that there are now late experts, I mean, I guess, and you're allowing them to testify, that's fine, but she can't undo what the Court has already ruled with respect to her testimony.

THE COURT: Yes. I was just thinking the same thing. You've explained that very well, Ms. Koehler. And I feel a little bit locked in.

MS. KOEHLER: You are.

THE COURT: And so, I think you raised a good point, and so I should clarify about this I think it's fine for her to testify about what the speed limit is if she's familiar with it, she apparently is, and what her normal route is and that sort of thing because it sets the stage for the accident, but obviously, she can't talk about Mr. Simon's speed because she did not see him.

So the order does preclude, or you know, that's not something that this order would allow. The denial of that part of the motion doesn't mean that she can testify about things which she didn't know about at the time of the summary judgment, but she will be able to set the scene for why she

was there and what her purpose was and her familiarity with the area, that's fine.

I'm sorry, I feel like the best we can do with -- and Ms Koehler has explained sort of the dilemma we're in due to these additional experts.

Let's see

MS. KILPATRICK: No. 37.

THE COURT: 37? Mine don't have numbers on them. Mine stopped at 35.

MS. KILPATRICK: Oh.

THE COURT: Do you have one that's numbered? The next one I have is Plaintiff's Motion to Exclude any Reference to Alcohol or Intoxication.

MS. BENEDETTI: Oh, okay. There should be more numbered motions in limine on the document called "Plaintiff's Second Motion in Limine."

THE COURT: Right One moment

MS. BENEDETTI: So, and they should be numbered.

THE COURT: I see. Yes, I found 37.

Go ahead.

MS. KILPATRICK: So, I mean, this is an issue we've covered a little bit already about estimates of speed, and, specifically, we want to make sure that the proper foundation is laid before anyone gets to estimate the speed for the lay witnesses since they are not experts, they would

need to have the foundation laid before to show why -- why they have the adequate foundation to testify as to speed estimates.

Otherwise, it's speculative and prejudicial, and so we would just ask that because clearly, this is a contested issue, in this case, we want to make sure that proper foundation is laid and Plaintiffs have the opportunity to object before this gets out.

THE COURT: Yes, it seems okay, I understand. Mr. Leid.

MR. LEID: So where I think counsel's going, and I should not be deprived of this on my opening because Monica Walker and Larry Crowley have been deposed, and they have laid the proper foundation in their deposition testimony Mainly, they are very familiar with that route

They've walked it many, many, many times. They're aware of the general speed limit, and there were cars traveling that day when they observed the motorcycles traveling upwards of two times the speed of those vehicles.

Both Monica Walker and Larry Crowley laid the foundation in their depositions that they're very familiar with the area, they know the speed limit, cars generally go 40 miles an hour on their walks, and on that day, they had cars passing them at a normal speed, and they saw these two motorcycles fly by at upwards of twice the speed of the

vehicles weaving in and out.

They have a laid foundation for their testimonies. Both of them have been car drivers for years and years and years So as a matter of law, that is sufficient foundation for them to ultimately testify to it at trial; therefore, I should not exclude them from talking about that in opening

THE COURT: Alright. Thank you, Mr. Leid.

Ms. Kilpatrick.

MS. KILPATRICK: I'm sorry. The other issue to be addressed in this motion is that witnesses well, people who did not actually witness the crash should not be permitted to testify about the speeds that they were going, lay witnesses. Because they didn't see it, they would have no way to know personally what the speeds were.

So, I mean, setting aside Larry Crowley and Monica Walker, anyone else, any other lay witness who wants to come in and testify that, Oh, it sounds like it was a high-speed crash, or I don't know, something else like that, if they didn't witness the crash or the collision itself, they should not be permitted to testify about the speed.

THE COURT: Mr. Leid.

MR. LEID: So I don't have any lay witnesses that are going to testify about speed other than Ms. Walker and Mr. Crowley. Perhaps there was an investigation by law enforcement, and they might have the foundation to testify

about the speed of impact -- that's another issue for Your Honor but neither Ms. Crowley nor sorry, Ms. Walker nor Mr. Crowley are going to testify about what the speeds were at impact because they didn't see it, they're not going talk about it. They're just going to talk about the bikes proceeding down the road passed them leading up to the impact.

THE COURT: Okay. Thank you.

So with respect to No. 37, this motion in limine states really what the law requires, that is that there is some sort of adequate foundation even for a layperson to offer an estimate of speed, and it sounds like that foundation will be laid, and this does not preclude Mr. Leid from discussing this in his opening statement. He's free to do that because he has a strong belief that this evidence will come in or will be offered and will come into evidence, and it appears that it will

And so the Court is going to grant Motion in Limine 37, with respect to its requirement that there be a foundation before an opinion or estimate is given as to speed.

With respect to any other lay witness, none has been identified. If this issue comes up, the Court reserves, and we can handle it at the time.

MS. KOEHLER: I think --

HE COURT: 38?

MS. KILPATRICK: Yeah. I think it's about the speculative testimony by the defendant about Plaintiff Braeden Simon's speed I think you actually already addressed that. I think in No. 36?

MR LEID: I agree, Your Honor We'll instruct our client that she's not going to testify about the speed.

THE COURT: Okay. So that is granted. 38 is granted.

39?

MS. KILPATRICK: I think this is in the interest of one of the earlier ones. Defendant Holguin wants to be able to testify that she does have a ticket, but she appeared at a mitigation hearing and was not required to pay the ticket.

There's no legal authority for this being admissible It's misleading because it's not an adjudication on the merits of mitigation hearings, that Court didn't actually make a determination about whether she was or was not responsible, and it could be used to suggest that a court found -- a different court found that she was not responsible.

So for all the reasons that we argue the traffic tickets should be -- Braeden Simon's traffic tickets should be excluded. Also this should be excluded as well.

THE COURT: Alright. Thank you, Ms. Kilpatrick.

Mr. Leid.

MR. LEID: I think you've already ruled on it, Your Honor, and I think all tickets are out.

THE COURT: Yeah, In looking at this question, it's hard to see how it's relevant, particularly because of the Court's ruling in the summary judgment and the finding that Ms. Holguin was negligent. We don't know -- it sounds like it was some sort of mitigation, but it could be confusing for the jury, and I don't see how it's relevant to the issues in this case.

And so, for that reason, the Court is going to grant 39. No. 40.

MS. BENEDETTI: Yes, Your Honor.

And actually dealing with 40 simultaneously with our separate motion in limine to exclude any reference to alcohol or intoxication, and I would like to do a screen share for that.

THE COURT: All right.

MS. BENEDETTI: As our Washington cases have established, evidence of drinking has been an extreme danger of unfair prejudice and is likely to stimulate the jury to make a decision based on an emotional rather than a rational response.

Now, in this case, the evidence as it relates to

intoxication is evidence of absence. We have Jonathan Lawson's deposition, who was Plaintiff's friend, who was riding a second motorcycle with him on the date of the collision He was asked:

Question:[as read] "Did he seem -- Did Jordan seem at all inebriated to you when you met up with him

Answer: No.

Susanna Odorchuck this is one of the women who was standing on the corner when the collision occurred was asked she was asked how close she got to him. She got right up to him to ask if he was okay. She was literally right next to him. She saw his face. She was asked, "Did you smell any alcohol on him at all?" Her answer was "no."

Veronica Musatkin, her friend, was also there noted that she was conscious, was alert, and oriented, that she was kneeling right in front of him and did not smell any alcohol on him, and that when he was talking to her, he did not slur his words.

Officer Cowan, who investigated the collision, determined that there was no indicators concerning the use of any substances, including alcohol. He said, you know, he described the type of indicators that he would look for and that he found none of those in this case.

At the time that the plaintiff was admitted to Tacoma General, which was, I believe, about an hour after the

collision occurred, they did an alcohol screen, and it was basically a negative. And yet despite this absence of evidence, the defendant has demonstrated an indication that they want to admit evidence of the plaintiff drinking alcohol not just on the date of the collision but at other times.

They have proposed trial exhibits such as this one which is Defendant's Proposed Exhibit 657, where Plaintiff is at a bar drinking alcohol with another beer right there in the foreground.

And additionally, they more recently have proposed Trial Exhibit 684, which is actually a video, and I don't have the video here, but what we did do is we took stills from the video, and the video admittedly shows him out there enjoying life.

There's many portions of the video that don't have alcohol in it, but there are at least three stills of these clips where these stills were taken from that show him drinking, chugging a beer, drinking something else.

And given that in this case, the defense has made no proper evidence that Plaintiff was intoxicated during the collision. They should be precluded from introducing any evidence of intoxication, doing any questioning on the issue of intoxication, implying or attempting to even insinuate the issue of intoxication because the mere questioning, regardless of whether the answer is no, has the distinct risk

of eliciting an emotional response from the jury.

And they should also be precluded from introducing such pictures and videos showing drinking on other occasions. And I understand that their reasoning for including these images and videos is to show that Plaintiff is out there enjoying life, and that's one of the things that he's doing to enjoy life is engaging in social drinking.

And, frankly, while arguably having the minimus relevance, certainly going out and socially drinking is a way to go out and enjoy life, the risk of the extreme risk of unfair prejudice warrants their exclusion, and, frankly, the defense is going to have more than enough photos and videos showing Plaintiff out there smiling, enjoying the company of others, going on vacations.

They have that evidence as well They don't need to build the belief by including Braeden's use of alcohol, given the concern of this case, that it could cause the jury to believe that he was drunk, that he was intoxicated when this collision occurred, and that would somehow taint their finding as to a comparative fault.

THE COURT: Thank you.

Mr. Leid.

MR. LEID: Your Honor, we are not making any contentions whatsoever that Mr. Simon was drinking or intoxicated in any way on the day of the accident. We're

willing to stipulate to that. We will not make any argument in any way associated with that. So we completely agree that we're not going to mention, even though he testified that he did have a beer before he went for a ride, I don't have any evidence that he was intoxicated at the time of the accident, so we will completely agree it's inadmissible

But the second part of this is fairly nonsense, actually. There is, number one, his decision to get together with his friends, his girlfriend, or whomever, and have drinks. It's relevant because a lot of this trial is going to be all things that he can't do, and life is forever changed and forever ruined etcetera, etcetera, etcetera.

So the fact that he is out having fun with his friends and the evidence is out there off of his own social media is not prejudicial in any way whatsoever He's an adult. It is absolutely legal and permitted. There is nothing in our society that would be prejudicial because somebody is social drinking with their friends.

In fact, it's the exact opposite. That if you are out enjoying your friends and social drinking, it is completely accepted and done and is a sign that, in fact, you are having fun and there is no prejudice in any way, shape or form out there in our society about this.

Now, if it was an illegal drug, certainly there would be a prejudice, but it's not. It's alcohol, and it's

well-accepted in your society. We don't have any evidence and we're not going to put forward any evidence that on any of these occasions he consumed too much and drove or did anything like that, but the fact that he's at home or wherever with his girlfriend or friend and social drinking is certainly relevant to all of his injury claims that he's going to be making.

Quite frankly, I just can't think of what the prejudice would be, because there isn't any. There's no prejudice associated with reasonable competent drinking.

THE COURT: Anything additional?

MS. BENEDETTI: Briefly, Your Honor.

The fact that they're not planning to introduce, attempt to introduce evidence of drinking on the day of the collision, you know, does not negate the sting of introducing such pictures and just allowing the jury to come to its own incorrect inference from their inclusion

You know, drinking alcohol, despite, you know, it is legal, but that doesn't change the fact that there are stigmas attached to it, at least among some people, that people can draw inferences from it. The defense will have more than enough opportunity to show Plaintiff out there enjoying friends, enjoying life; however, they want to use that to attempt to negate our claim of, you know, general damages, the risk here given it involves Plaintiff driving a

motorcycle and the jury having to decide comparative fault, is just too great to allow the introduction of these specific items.

THE COURT: All right, thank you

In the case decided in the plaintiff briefing the Court in the Salas v Hi Tech Erectors, 168 Wn 2d 664, said that "The danger of unfair prejudice exists when evidence is likely to stimulate an emotional response rather than a rational decision." And then, in Gerlach v. Cove Apartments, LLC, at 196 Wn.2d 111, the Court, in that case, said that "Evidence of prior alcohol abuse has the potential to be very prejudicial." So there has been some appellant court case law that acknowledges that alcohol evidence relating to alcohol use can be prejudicial.

In looking at this the question is does the probative value of this evidence outweigh its prejudice -- any prejudice it might cause? It seems like the probative value could be established first of all by other means other than the photographs simply asking Mr. Simon if he saw people socially, went out, that sort of thing.

But offering the photographs, I think it is a fair argument that there are members of the community of the public that would look down on social drinking. A lot of people don't drink at all, and so there is that potential for prejudice, and that's something, as I mentioned, that the

appellate court has recognized.

And so, because there are other ways to prove up this evidence that are available, if this were the only way that the defense could make their case, I think it would be a different question, but in doing the 403 Analysis, the Court finds that if the probative value of this evidence is really pretty low, mainly because there's not a lot depicted. I guess there is a video and the Court did see screenshots of it. Mr. Simon appeared to be happy and was with friends, but there are other ways to establish that without showing him drinking, and I think weighing the value of that evidence as opposed to its potential prejudice to him because of the public's members of the public who have objections to alcohol, and also kind of taking into account what the plaintiff had said about this is a case about driving

You know if it were a case about something else it might not be so prejudicial, but it is a case about driving, and it could very well plant a seed in the jurors' mind that he is a drinker and, you know, that's the reason why this all happened.

And so, for that reason, the Court does find that any probative value of these photographs is outweighed by the prejudice that they could cause to the jury on how the jury viewed the case, and so for that reason the Court will grant Motion in Limine 40.

MS. KOEHLER: Your Honor, if I may ask for a point of clarification?

THE COURT: Yes.

MS KOEHLER: On the issue of alcohol, Mr Leid said that they're not going to claim that he was under the influence or that he had higher, unreasonable you know, that it affected any part of his driving that day. However, if we go back in time to set the scene, he did have one beer and was at a bar when his friend, Mr. Lawson called him, and said let's go for a ride. He then went home and met Mr. Lawson at his home.

And so I think in the spirit of your ruling that the proper place in setting the scene of this case is just the fact that Mr. Lawson called him, and he met him at his home, and they went on a ride

THE COURT: Okay. Does this relate to the motion to exclude any reference to alcohol or intoxication?

MS. KOEHLER: Yes, because he was at a bar.

THE COURT: What I want to do I'd like to suggest we will take our afternoon recess, and then we will come back and discuss this motion.

MS. KOEHLER: Thank you.

THE COURT: All right.

So court will be at recess until 3:15.

(Court at recess)

MS. BENEDETTI: Hello.

THE COURT: Hello. Do you wish to wait for Ms. Kilpatrick?

MS BENEDETTI: No, we don't need to wait

THE COURT: Okay. So I just mentioned that the next motion is Plaintiff's Motion to Exclude Any Reference to Alcohol or Intoxication, and Mr. Leid asked to be heard on that.

Go ahead, Mr. Leid.

MR. LEID: So, Your Honor, I do want to revisit this and maybe request the opportunity to do additional briefing, and let me explain why.

So number one, I've never had this excluded before. We've had multiple trials where a person was drinking. And the drinking goes to the enjoyment of life issue What is somewhat unique here is that Mr. Simon smokes marijuana every day, and that is certainly going to come into evidence

And so if he smokes marijuana every day, and that is going to come into evidence, how can we not get into evidence the fact that he's drinking socially with friends? So, I -there's a complete disconnect here. So they're not telling the whole story. Arguably marijuana has a much worse connotation than alcohol.

And so, in addition, much of Mr. Simon's social media is alcohol-related, and so limiting this is certainly cutting

off our ability to defend from these claims, particularly when there's going to be evidence that he smokes marijuana everyday.

THE COURT: All right

MS. KOEHLER: I would like --

THE COURT: All right, go ahead

MS. KOEHLER: I would like to respond -- and Lisa I would like to apologize for taking on this subject but this is true that recently the only way that Mr. Simon can manage life without narcotics or medication, which he has been prescribed on a chronic basis, is to get to sleep, he does smoke marijuana.

Now, whether this comes in or not, I haven't really thought about that. It's for a completely different issue. There is no allegation by Mr Leid that Mr Simon was under the influence of marijuana or alcohol at the time of the crash

And that needs to be, you know -- the line needs to be really drawn clearly there, and that's why I brought up the issue of, yeah, he was at the bar, and he got a call, and he went home and met Mr. Lawson, and they went driving from his home, and I would like to have exclusion of the bar in there.

Otherwise, if you leave in the bar, then we have to say, well, he only had one drink. And then we have to say,

he wasn't intoxicated; and now we have to say this witness says he was, and this witness said he wasn't. And these are the medical records. I mean, if we have to do that, then I guess we have to do that It just seems since Mr Leid is saying that he's not gonna go down that route, it's a complete waste of time This is classic ER 403, Your Honor

THE COURT: Okay.

Mr. Leid, it sounds like what you are saying is you wanted to advise the Court that you may ask the Court to reconsider on the issue of the photographs of him drinking with friends, and that's fine.

But on this next issue, I see it as a separate issue. Are you prepared to address that issue?

MR. LEID: I do, Your Honor.

I just wanted to make sure that you were fully aware about the marijuana.

THE COURT: Okay

MR. LEID: And they didn't tell you about that story, and I think that fact would ultimately that alone would change your opinion as to how you ruled earlier, knowing that, in fact, he smokes marijuana every day, which arguably is much more prejudicial than drinking alcohol.

I have no objection to Ms. Koehler's offer, and I have no objection to the perhaps the limine instruction. There's the fact that he smokes marijuana or drinks alcohol

has no bearing whatsoever on the facts of the accident. I'm fine with that. But to preclude us on the marijuana and the alcohol significantly deprives the jury of knowing in part who Mr Simon is, and there just is no case law directly on point that supports their position in any way.

THE COURT: Okay

So on the issue of the Plaintiff's motion to exclude any reference to alcohol or intoxication, is that are you saying that the parties agree on that? Are you prepared to argue that issue?

MR. LEID: So, I am absolutely in agreement that the parties are agreeing that on that day, the day of the accident. We can exclude all evidence of alcohol and his trip to the bar. I have no objection to any of that, but what I'm saying, though, as to general damages as to what Mr. Simon's life is like post-accident, that the fact that he smokes marijuana every day and the fact that he is drinking alcohol socially are relevant and material to the story of who Mr. Simon is now.

THE COURT: And the Court did not exclude admission of evidence relating to his use of alcohol with friends. The fact that he goes out with friends socially is relevant. The last ruling was just limited to the introduction of the photographs.

MR. LEID: And again, I understand what Your Honor is

saying, but we respect, and we request the opportunity to brief this more because it is a significant part of his social media and his life that he is out socially drinking with friends, and there's going to be many, many photographs that the plaintiff is going to put forward, hundreds in fact, about all of these other aspects of his life, and to preclude that is a severe damage to the defense, and our's provides the jury with the entire story.

THE COURT: Okay. I would be glad to consider any additional briefing you want to offer on it.

So on this Motion to Exclude Any Reference to Alcohol or Intoxication by agreement of the parties, the Court is granting the motion.

MS. KOEHLER: Your Honor, can we rewind then to the one point I had for classification?

THE COURT: Yes, go ahead.

MS KOEHLER: And that is, on the date of the incident, he was at a bar having one beer when his friend called him and said let's go for a ride. They then met at his house. Am I correct that under your ruling that the fact that his day before going to his house to meet his friends are not going to come into the case?

THE COURT: Mr. Leid?

MR. LEID: Yeah, I have no objection to that.

THE COURT: Okay. So this will extend to -- and

really, I think it does get to the fact that he was having a beer at the bar, yes. So the answer is yes.

MS. KOEHLER: Thank you, Your Honor.

THE COURT: All right Let's see There was a motion regarding evidence of Defendant's liability and conduct

MS. BENEDETTI: That's correct, Your Honor.

THE COURT: All right. Would you like to address that at this time?

MS. BENEDETTI: Yes. Yes, Your Honor.

And, I mean, given the other rulings that you've made in this case, I feel like maybe we've already sort of addressed this issue, but basically, the gist of it is that even though Defendant's liability is established as a matter of law because the comparative fault issue remains we need be able -- both parties need to be able to put in a clear picture of the conduct of both parties leading up to the collision so that the comparison between the two can be made.

Defendant should not be allowed to deny the force and effect of the Court's legal finding of liability, but in terms, you know, the parties still need to be able to discuss factually what happened to show an entire picture of the nature of the collision and so that the fault can be assessed in portion by the jury.

THE COURT: All right. Thank you. Mr. Leid.

MR. LEID: I think you've already ruled on these issues, Your Honor.

THE COURT: Yeah. I had that sense when I was reading it

So, and I do think it's -- Mr. Leid, is there any objection to the statement, I guess, of the position of the plaintiff that's set forth in the motion?

MR. LEID: I thought we'd gone through all the motions, Your Honor. So I don't have that specific one in front of me. Let me see if I can find it.

THE COURT: So basically, it sounds like, Ms. Benedetti, what you're asking the Court to order is set forth in your last paragraph of the motion?

MS. BENEDETTI: The last two paragraphs, I think, but yes

THE COURT: All right.

MR LEID If I may have a moment

THE COURT: Yes.

MR. LEID: As I see the last two paragraphs that begins, "Here the jury will be called upon." Is that what the Court is looking at?

THE COURT: Yes.

MR. LEID: I think that the Court has ruled on this in the prior motions in limine.

THE COURT: Yeah, I agree. I don't think there's a

-- Ms. Benedetti, do you see a need for an additional order on this?

MS. BENEDETTI: Given the Court's ruling on the other motion in limine, because we didn't know how it was all going to play out, I would say it's not necessary. It would be fine either way

THE COURT: Okay. Let me get this --

MS. BENEDETTI: Granting it would be consistent with all the other rulings that you've already made in the case.

THE COURT: Yes.

So the Court will grant the motion and specifically that during the trial the defendant nor anyone else will be able permitted to refute, deny, or call into question the Court's dispositive ruling in the case to the effect that Defendant was negligent as a matter of law

So that motion is granted.

Are there I was going through my file here

Are there any other motions in limine?

MR. LEID: I don't think so Your Honor.

MS. BENEDETTI: No, Your Honor.

THE COURT: All right.

So jury selection tomorrow. We have 60 jurors?

THE JUDICIAL ASSISTANT: Yes.

THE COURT: Alright. So we'll start at 9:00 a.m., and hopefully, we will get the hardships pretty fast, and we

can deal with those before we bring up the full group of jurors, and then when we bring them up, I'll read the introductory instruction that is in the Wipi(ph) for civil cases, and I will read the agreed statement of the parties about the case, and I'll swear the jurors in for the purpose of voir dire and then we will have a board with some general

questions about -- there's like five different questions about where they work, if they have a spouse, where their spouse works, or what type of work they do, and what part of the county do they live, do they have children.

It also asks them about their hobbies, and that's kind of a good icebreaker for the jurors, and then it allows the parties to kind of relax and take notes. You don't have to ask any questions at that point, and then if there are any hardships that we still have questions about, I will probably ask the individual jurors about them, and then you can follow up Sometimes there's enough from that additional questioning to excuse the juror on the spot, but if not, they will remain in the veneer, and you can follow up with them if you wish.

And so what I would like is if we start out with each side, the plaintiff will start and have 20 minutes, and then the defense 20 minutes, and then the plaintiff again 20 minutes, and the defense 20 minutes, and so on if necessary. But I find by changing it kind of keeps it fresh

and keeps it moving.

The other thing is, you know, the purpose is to weed out bias. It seems a lot of times, the attorneys want to kind of sell the jurors on their version of the case The problem with that is it's not really the purpose of voir dire, and it also takes a lot of time, and so I would ask that the parties think about questions that basically are good questions for weeding out bias and because that is really the purpose of voir dire, to get a fair jury, a jury that will be fair to both sides. Are there any questions about voir dire?

MS. KOEHLER: Yes, Your Honor. Would you consider a couple additional general questions?

THE COURT: Sure.

MS KOEHLER: I could send them in writing or just say them right now, really just a few. I think that one of them I always like to see, and I prefer when a judge asks this is, Whether you, the jury, have -- whether anyone has any religious or moral or other beliefs that would interfere with their ability to serve as a juror in a civil case?

THE COURT: All right.

MS. KOEHLER: The second one is, Does any juror have any physical disability that might interfere with their ability to serve as a juror in this case?

MR. LEID: No objection to both.

MS. KOEHLER: And then maybe a question, just an open ended question, do you have do you have any there's one that says, you know, Are you a driver? Do you have your driver's license? I would ask if anybody has a motorcycle endorsement or if anyone drives a motorcycle.

MR LEID: I would object to that one, Your Honor I think that's more left to the individual parties.

THE COURT: All right.

A couple of things. I feel very strongly that jurors with disabilities should be able to serve on the jury.

MS. KOEHLER: Agreed.

THE COURT: And I'm worried that it might feel like they are getting discouraged.

MS. KOEHLER: Let me -- you can re-word it and add, What would you need as an accommodation? And the reason is because -- even Mr. Leid might have been in one of those juries where after we had impanelled the juror, the juror would raise their hand and say, I can't sit on this; I can't see anything.

THE COURT: Okay.

MS. KOEHLER: Now, a hearing normally can be dealt with because you have those little machines, but the seeing can be a real problem, and it makes them feel terrible if they can't participate.

THE COURT: And the first one was whether any juror

has any beliefs. And you mentioned --

MS. KOEHLER: Morals, religious, or other beliefs.

THE COURT: Okay.

MS KOEHLER: That would interfere with their ability to serve on a civil jury.

And then, Your Honor, I believe that you have the list of witnesses. Am I correct you're going to read that list to the jury?

THE COURT: What I was going to ask is that the parties read your list of potential witnesses when I introduce you. I'll then ask, well, Ms. Koehler, would you please read the names of any potential witnesses you intend to call.

MS. KOEHLER: All right.

THE COURT: And then if you could do that slowly and deliberately to make sure that jurors hear because then I'll ask whether or not they know recognize anyone

MS. KOEHLER: All right. And then earlier, Your Honor, you had ordered that the defendants name during that process their attorney from Vancouver, Doug Foley.

THE COURT: That's right.

So with respect to Doug Foley, do you want to state his name, Mr. Leid?

MR. LEID: I will. I'll state it. He won't be a witness, but I will state his name.

THE COURT: Okay. That sounds fine.

MS. KOEHLER: And Then, Your Honor, a couple more with respect to voir dire. So as I understand, you're allowing us to challenge on the spot?

THE COURT: Yes.

MS KOEHLER: When we do peremptories, are they all general practice or do some of them go specifically to the alternates?

THE COURT: You'll know which ones are for the alternates. So it will be numbered. It will be 1 through 3, and then you'll have the additional two. It will be two for three alternates. The additional two -- because I believe it is the RCW requires that if the exercise against chronologically and against the alternates, So we're always going to know who the alternates are, and you'll know that, but the alternates we're not going to tell them. They may figure it out, though

MR. LEID: Will you give us a list before?

THE COURT: Yes, we usually get the list when they come up.

THE JUDICIAL ASSISTANT: We should have it first thing in the morning.

THE COURT: Okay. So we should have a list available to you first thing in the morning.

MS. KOEHLER: And Your Honor, what time does the

courthouse open the doors and for your courtroom?

THE COURT: Usually around 8:30.

THE JUDICIAL ASSISTANT: Between 8:15 and 8:30.

THE COURT: That was Ms McFarland

MS. KOEHLER: And, Your Honor, may we have permission to turn our chairs around to see the jurors?

THE COURT: Absolutely. Yeah. We'll probably have to put some in the jury box, correct?

THE JUDICIAL ASSISTANT: It depends on how many are excused.

THE COURT: We usually try to put all of them in the gallery, but we might have to put the first 15 in the jury box.

MS. KOEHLER: So, Your Honor, I think that we should look at the calendar so you can give the jury the end date

THE COURT: That's a great idea. I should tell them that at the beginning What do you anticipate?

MS KOEHLER: Well, originally, we anticipated being done on the 5th. That was before you pushed closing ahead by a day -- I mean opening ahead by a day, and then you told us we don't have trial on the 4th. So I think that means that we are now looking at October 10th, Monday. We'll try to get done on the 6th, but I don't know that we can. I think sometime on October 10th is when the defense will start, and I don't know how many days they would be.

THE COURT: Let me ask Ms. McFarland. Does jury services know? Do they have the 10th as the date.

THE JUDICIAL ASSISTANT: I have not put an end date yet.

THE COURT: So we will put in the 10th as an estimated end date.

MS. KOEHLER: No. No. That's the plaintiff's estimated end date.

THE COURT: Okay. So how long do you think your case will go, Mr Leid?

MR. LEID: I would estimate another four court days.

THE COURT: Okay.

MS. KOEHLER: I intend to put in most of the defense case in a plaintiff case, but that's fine if you want to overestimate. I would imagine it will be more like three days

THE COURT: So that will be --

THE JUDICIAL ASSISTANT: 10/17.

THE COURT: And then the rebuttal case, if any.

MS. KOEHLER: That will be a day; half a day to a day.

THE COURT: Okay. So possibly until October 18th.

MS. KOEHLER: Yeah, and then closings.

THE COURT: Oh, yeah the closings.

So let's say October 19th.

THE JUDICIAL ASSISTANT: That's a recess date.

THE COURT: So then October 20th.

So that's what we'll tell them I'm glad we're doing 60 because we may get some people who have a hardship because of the length of the trial

MS. KOEHLER: Your Honor, typically, my trials that I'm involved in end early, but the jury's always happy about that.

THE COURT: Exactly.

MS. KOEHLER: So I think that's a good safe bet.

THE COURT: How many -- Ms. McFarland has handed me an important note how many chairs do we need for the parties?

MS KOEHLER: Well, it depends on how let's see, probably we need for the plaintiff's table we need three. I think Ms Kilpatrick will kind of visit us periodically, but she can sit right behind us.

THE COURT: Okay. And we have some wooden chairs that we can put a pad on or something like that behind them.

THE JUDICIAL ASSISTANT: Yes.

THE COURT: Mr. Leid?

MR. LEID: Four, please, Your Honor.

THE COURT: Okay. So we'll borrow some chairs from next door.

Let's see, any other questions?

This is for Ms. Abhaya. If you can, please what I'd like to do is get the jurors to stand up and say their number before answering the question, and I kind of get them in that habit by those preliminary questions, so, and please do this on behalf of Ms Abhaya If the juror you're questioning doesn't state their number, please ask them their number or state their number on the record.

Oh, yes. We have a shortage of court reporters. We do not have a court reporter in every department. I think we're in a little better shape than King County, and for that reason we aren't able to do dailies. If there's a request for an expedited transcript, you'll have to talk to Ms. Abhaya and see if she has time to do it or not. Because she'll be in court all day and her only time would be during break or in the evening.

Anything else you guys can think of?

MS. KOEHLER: Well, we still have the motion for nonsuit that we need to discuss.

THE COURT: Okay. I was talking to Ms. McFarland and Ms. Abhaya.

MS. KOEHLER: Oh, sorry, Your Honor.

THE COURT: That's all right.

Okay. Mr. Leid, the Court has before it a Plaintiff's Voluntary Dismissal of An Action under Civil

Rule41(a)(1(B)1 of Defendant Spouse Doe only in a proposed order. Have you had the chance to review this order?

MR. LEID: We have, Your Honor, and we filed a response around 2:00 or so

THE COURT: Oh, okay. Let me look at that. One moment

MS. KOEHLER: I think Ms. Kilpatrick is going to be arguing this.

MS. KILPATRICK: Yeah, I took the break to review the response and to do some legal research, and I'm prepared to discuss the issues.

THE COURT: Okay. Go ahead, Ms. Kilpatrick.

MS. KILPATRICK: And I guess maybe what I should preface in saying is that I couldn't find a single case that dealt with this particular statute in connection with CR 41(a). I just wanted to screen share real quickly. The court rule that we're looking at, so CR 41(a) is about voluntary dismissal, and the first section which we fall under is mandatory, which means we can dismiss anytime before the conclusion of the plaintiff's case for any reason.

So that's what we're doing here. Mr. Holguin does not need to be in the suit. The problem I've read every case that came up when I searched for the statute, and there aren't very many of them, maybe like 10 none of them addresses this issue.

The statute itself was quite old, and I think if you read the statute, it's more aimed at ensuring a spouse is protected. So for example, if my husband was in a crash and he filed suit separately, my rights as his wife would still be protected, and I would still be able to join that case. Similarly, on the other hand, if my husband did something to cause harm to somebody else and we were both sued, and he defaulted, I could still step in to defend.

So they're citing this for the prospect that the defendant is required to stay, or Mr. Holguin is required to stay in the case, but there's no case that supports that. We have the clear language of the civil rule, which gives us the absolute route to dismiss any party for any reason at any time before we rest our case. And so, I would submit that we're entitled to the order

THE COURT: All right. Thank you, Ms. Kilpatrick. Mr Leid

MR. LEID: Thank you, Your Honor. So this is essentially a combination of CR 19. Mr. Holguin is a necessary party. If you look at the annotation, it specifically cites to the fact that a spouse in a community property can be subject to judgment and collection of assets in a case like this. It cites to RCW 4.08.040, which specifically gives the right to spouses and domestic partners to be able to be a party to these actions to protect their

own interests, and that's exactly what Mr. Holguin's doing. He wants to be a party to protect his own interest under the RCW. The plain language of that second paragraph of 4.08.040 says that he has every right to be a party to this action to protect his interest as the spouse in the community property stake

THE COURT: All right. One moment. Go ahead.

MS. KILPATRICK: I'm sorry. I would just respond by saying that, first of all, that community assets are not at risk. We're not going after their house. We're going after the insurance proceeds. Allstate has already agreed to indemnify Ms. Holguin, so that's not the issue. We're not seeking anything from Mr. Holguin for the community assets, just the insurance proceeds.

And second of all, if counsel's argument was true, where's the case that says that? I mean this is what I find so puzzling is that the statute has been on the books for I mean I found cases going back to the early 1900s -- where's the case that says that this statute overrides our right to a voluntarily dismissal?

And so, I think if counsel's argument was right, there would be case law discussing it. So either they're super smart, and they're raising another issue for the first time that no one's ever thought of, or it doesn't actually work the way they suggest.

MR. LEID: No. It's the other way around, Your Honor. This is an RCW statute which absolutely controls, and there is not a single case that supports counsel's argument that CR 41 allows you to dismiss one spouse and keep the other in. The plain language of the statute gives both spouses, both domestic partners, the right to maintain their ability to protect their family and their community, and there is no exception to this statute.

THE COURT: I was just reading the statute. Ms. Kilpatrick, can you so you don't have anything additional on the statute, interpreting the statute?

MS. KOEHLER: I'm not sure I heard correctly, but Ms. Kilpatrick, did you discuss RCW 4.56.120?

THE COURT: She did.

MS KOEHLER: Okay

THE COURT: But she indicated there's no case law on it

MS. KILPATRICK: No. What I discussed was the 4.08.020 which is a statute cited by Defendant. What Ms. Koehler is referencing, and I forgot to mention, was RCW 4.56.120, which also gives us the right to dismiss a party before the end of the case. So we've got the court rule and the statute versus their statute, and I don't think I need to get into the separation of powers issue with the legislature telling -- telling the courts how the procedural

things work in court which obviously is not allowed, but we don't need to get there because we've got both the statute and the court rule.

THE COURT: Ms Kilpatrick, can you give me the cite you just said and the statute?

MS KILPATRICK: Yes, RCW 4 56 120, and it's titled "Judgments of Dismissal or Nonsuit.

THE COURT: Okay, one moment.

And in that statute it says provided that no action shall be dismissed upon the motion of the plaintiff if the defendant has interposed a setoff as a defense.

Does that affect this at all?

MS. KOEHLER: There's no setoff. None of this applied.

THE COURT: Okay

MR. LEID: I completely disagree, Your Honor. There's no question that they can file a motion for nonsuit Generally, it would be granted, but there's a specific exception in our state to spouses that it's statutory that specifically allows both spouses to be parties in the case. It's the plain language of the statute. It may be the only exception to CR 41, but the language is very clear. Both spouses get to be parties.

MS. KOEHLER: Your Honor, I think your question was has the defendant interposed a setoff as a defense? Answer,

no. Are they seeking affirmative ruling going on in the same transaction? No. Do they have a counterclaim? No. They don't have any counterclaim at all. So the answer is, no, no and no

MR. LEID: All of these anticipate, Your Honor, that there's a separate party That it's not a community, right? This would be imagining that there's other car accidents or other entities at fault that would be dismissed. There's not a single case that is supportive of anything other than RCW 408.040 in the narrow context of a marriage or a domestic partnership.

THE COURT: And your reason for opposing it is Mr. Holguin wants to remain a party to the case?

MR. LEID: Correct.

THE COURT: Is there a practical reason why or

MR. LEID: I don't think we have to disclose our strategic defense, Your Honor, as to why, but they, both Holguins, want them both to be parties in this defense.

THE COURT: I see. All right.

I'd like to do a little research on this. We can address it I'll address it tomorrow morning.

Is there anything else before we recess for the day?

MS. KOEHLER: Your Honor, can I just make sure -- can we just make sure about the schedule? Are we done at 4:00 or 4:30 every day?

THE COURT: At 4:00.

And so we'll kind of do like we did today. We'll start at 9:00, take a break around 10:15. Actually with jury selection, we kind of go until it's over The reason being we'll probably end up sending them to lunch, but they have to go back down to jury services So once we bring them in we'll probably go until noon on jury selection, and then we'll have them back at 1:30, and you'll continue your questioning, and generally, we go in until we're done just because it's so difficult to send them back to jury services and then get them all back again in order. So we try not to do that, but I think we're going to at least have to send them out for lunch and then get them back.

Let's see what else?

So on a normal trial day, we'll start at 9:00, probably around 10:15 -- 10:30, take a morning recess for 15 minutes usually, and then break by noon, we'll start on the record at 1:30, and then go until 2:45 or 3:00, take a recess and then for the same amount of time, and then we'll end by 4:00.

And the problem with going over is you probably know we're a public court, so they start locking the doors downstairs before 4:30, which prevents the public from coming in, and so then I would have to make like a bone club analysis why we have to conduct this outside the public's

view, and I don't want to do that, and so I want to make sure we're done by 4:00, and then we'll let the jury go and so.

MS. KOEHLER: Your Honor, I do have one more question I understand that we will not be live streaming this trial, which is fine, but we are requesting that Mr Simon be allowed a Zoom link and only our office a Zoom link. Same with Mr. Leid and his office, and you can make sure we won't send it to, you know, members of the public. It's only for our office and for Mr. Simon, in particular, Mr. Simon, because his condition, even after this long, it's still not done evolving. He can't always come into court.

THE COURT: That's fine. In fact, if there's anyone, you know, a law clerk or whoever you would like to have attend, we can send them a Zoom link or once we get through jury selection, we should have plenty of room for everybody

MR. LEID: Your Honor, for the record, we object.

You are characterizing that he's unable or can't make it to court every day, so you're presenting from the standpoint of the court, commenting upon his ability to not come in.

MS. KOEHLER: Well, I'm going to tell you, Your Honor, during trial we are going to have to tell the jury that he can not come in every day, doctor's orders. I've had plenty of trials where this has happened before, and the jury has to know why people aren't showing up.

THE COURT: Is he going to be here tomorrow?

MS. KOEHLER: He can't be here tomorrow because, frankly, he's still in the hospital.

THE COURT: He's in the hospital?

MS. KOEHLER: Yeah, but he's going to be out tomorrow

THE COURT: Mr. Leid, do you still object?

MR. LEID: Yes.

THE COURT: Okay, I guess if the parties want to offer some briefing on that, it seems like a reasonable request. Are the Holguins

MS. KOEHLER: At a minimum -- yeah, at a minimum, it's a disability accommodation under the ADA, so we can, Your Honor, we can provide you with a written -- we will provide you with a written document So we thank you

THE COURT: Okay.

MS KOEHLER: We're fine for our office If Mr Leid is saying he doesn't want our, like my paralegals, to be able to attend, you know, the jury is never going to see this Zoom. They are never going to know who's showing up on here. I don't understand how that would be a problem.

MR. LEID: I don't have an objection to Ms. Koehler or my office having, you know, feeds to our staff. That's not my objection, so I don't have a problem with that.

MS. KOEHLER: Oh, okay. Well, then our brief will be

nice and short because we certainly need to have our client be able to follow these proceedings along. So, I guess for our agreement on the rest of it, but just with respect to Mr Simon we'll brief that, Your Honor

THE COURT: Okay. That sounds fine. So I look forward to the trial, and we'll see you tomorrow at 9:00 a m

MS. KOEHLER: Thank you.

THE COURT: Courtroom 533.

MS. BENEDETTI: Thank you, Your Honor.

MS. KILPATRICK: Thank you, Your Honor.

THE COURT: Have a good afternoon and evening.

MS. BENEDETTI: You too.

THE JUDICIAL ASSISTANT: The court is at recess.

(Court adjourned at 4:03 p m )

REPORTER'S CERTIFICATE

I, Tobiyah D. Abhaya Official Court Reporter for Department 13 of the Pierce County Superior Court, do hereby certify that the foregoing transcript entitled, "Verbatim Report of Proceedings," was taken by me stenographically and reduced to the foregoing typewritten transcript at my direction and control, and that the same is true and correct as transcribed. DATED at Tacoma, Washington, this 20th day of September, 2022.

/s/ Tobiyah D. Abhaya Tobiyah Abhaya, CCR