Weaver v. Toyota Motor Corporation et al

Filing 112

ORDER re: the pretrial hearing on 2/27/2014; granting 91 Toyota Defendants' motion for summary judgment for punitive damages; granting in part and denying in part 98 Toyota Defendants' Motion in Limine as set forth in this Order; and, granting in part and taking under advisement in part 100 Mr. Weaver's Motion in Limine. Signed by Judge Kristine G. Baker on 2/28/2014. (thd)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
RICKY WEAVER, as Personal
Representative of the Estate of
MICAH WEAVER, Deceased
v.

PLAINTIFF
Case No. 1:11-cv-00025 KGB

TOYOTA MOTOR CORPORATION,
and TOYOTA MOTOR SALES, U.S.A., INC.

DEFENDANTS

ORDER
The Court conducted a pretrial hearing in this matter on February 27, 2014. Counsel for
plaintiff Ricky Weaver, as personal representative of the estate of Micah Waver, deceased
(hereinafter “Mr. Weaver”), and counsel for defendants Toyota Motor Corporation and Toyota
Motor Sales, U.S.A., Inc. (hereinafter collectively “Toyota Defendants”), were present. The
Court heard argument from counsel on defendants’ motion for partial summary judgment on
punitive damages (Dkt. No. 91); defendants’ motion in limine (Dkt. No. 98); defendants’
objections to plaintiff’s exhibit and witness lists (Dkt. No. 99); plaintiff’s motion in limine (Dkt.
No. 100), to which defendants filed a written response (Dkt. No. 105); and defendants’ objection
to plaintiff’s use of deposition testimony (Dkt. No. 103). The Court rules as follows. As to those
matters about which the Court grants an in limine motion, all parties, their counsel, and witnesses
are directed to refrain from making any mention through interrogation, voir dire examination,
opening statement, arguments or otherwise, either directly or indirectly, concerning the matters
about which the Court grants an in limine motion, without first approaching the bench and
obtaining a ruling from the Court outside the presence of all prospective jurors and the jurors
ultimately selected to try this case. Further, all counsel are required to communicate this Court’s
rulings to their clients and witnesses who may be called to testify in this matter.

I.

Defendants’ Motion for Partial Summary Judgment on Punitive Damages

The Toyota Defendants sought summary judgment against Mr. Weaver on any claims for
punitive damages in this case (Dkt. No. 91). During the pretrial hearing, counsel for Mr. Weaver
confirmed to the Court that Mr. Weaver does not seek punitive damages.

Based on that

confirmation, this motion is granted.
II.

Defendants’ Motion in Limine

The Toyota Defendants filed a motion in limine, which this Court grants in part and
denies in part as follows (Dkt. No. 98).
(1)

Unintended and/or Sudden Acceleration

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence regarding unintended and/or sudden acceleration issues involving Toyota vehicles
generally, or any evidence that suggests or implies that the subject 2000 Toyota 4Runner
involved in this case (hereinafter “the subject 4Runner”), unintentionally or suddenly accelerated
at the time of the accident at issue in this case. Therefore, as to this point, the Court grants this
motion.
(2)

Other Vehicles, Incidents, Accidents, Claims, or Lawsuits

With the exception of demonstrations identified by counsel for Mr. Weaver and
addressed specifically and separately in this Order in Part Five below, counsel for Mr. Weaver
agreed during the pretrial hearing that neither he, Mr. Weaver, nor witnesses for Mr. Weaver
would make any mention of, make any reference to, or put on any evidence regarding any
vehicle, incident, accident, claim, complaint, report, or lawsuit alleging injuries or damages from
any accident involving the same model vehicle or any allegedly similar vehicle, or any other

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claim complaint, report, or lawsuit involving the Toyota Defendants.

Therefore, with the

exception of demonstrations identified by counsel for Mr. Weaver and addressed specifically and
separately in this Order, the Court grants this motion to the extent Mr. Weaver is in agreement
with it.
(3)

Unsupported Defect Theories

With the exception of the issue of Micah Weaver’s seatbelt use and inadvertent unlatch
theories and evidence, which are addressed specifically and separately in Part Four and Part Five
of this Order, counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr.
Weaver, nor witnesses for Mr. Weaver would make any mention of, make any reference to, or
put on any evidence regarding any allegations that the subject 4Runner was defective with
respect to aspects of the subject 4Runner’s seat belt systems other than inadvertent unlatch
theories or the subject 4Runner’s handling and stability performance. Therefore, the Court
grants this motion to the extent Mr. Weaver is in agreement with it.
(4)

Seat Belt Use and Buckle Unlatchment Opinions

The Toyota Defendants move in limine to preclude Mr. Weaver, his counsel, and
witnesses from being allowed to make any mention of, make reference to, or put on any evidence
regarding an opinion that Micah Weaver was wearing his seat belt at the time of the subject crash
or that his seat belt buckle inadvertently unlatched during the crash. Counsel for Mr. Weaver
said that he would not raise the seat belt issue at trial, if the Toyota Defendants did not. The
Toyota Defendants did not agree. Therefore, the Court takes up the in limine motion.
The Toyota Defendants state that no factual witnesses have testified based on personal
knowledge that Micah Weaver was wearing his seat belt at the time of the crash. The parties
anticipate that Mr. Weaver’s expert witness on the issue, Dr. Jacqueline Paver, will testify that

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there is some evidence consistent with belt use, that she has identified five bases for her opinion
that Micah Weaver was wearing his seat belt at the time of the crash, but that she will be forced
to concede, as she did in her deposition, “there’s evidence that supports belt usage. To say
definitive, more probable than not, I don’t believe that’s present in this case, but, again, with the
belt, you don’t always get the belt marks that you would see in a frontal crash, in a rollover
crash.” (Dkt. No. 98, at 9 n.8). The Toyota Defendants argue that, as a result, this evidence is
speculative and would not be helpful to the jury. See Fed. R. Evid. 702.
As to Dr. Paver’s anticipated testimony regarding Micah Weaver’s use of his seat belt at
the time of the crash, this Court denies the Toyota Defendants’ motion.

This anticipated

testimony, based on the Court’s review of the record before it, satisfies Federal Rules of
Evidence 401, 402, 403, and 702.
Dr. Paver also testified regarding her opinion that the subject seat belt buckle is
susceptible to inadvertent unlatchment. The Toyota Defendants’s argument in this regard is
based on several points. As an initial matter, the Toyota Defendants claim that, when Dr. Paver
rendered her opinion regarding inadvertent unlatchment, she based it on her own subjective
experience in unlatching the subject buckle during a vehicle inspection. The Toyota Defendants
contend that Dr. Paver’s opinion in regard to inadvertent unlatchment is based solely on
unreliable facts and data and is an opinion about which she is not qualified to testify as an expert.
The Toyota Defendants also argue that evidence of an opinion as to inadvertent unlatchment
would not be helpful and would be highly prejudicial and confusing to the jury.
In addition, the Toyota Defendants challenge any attempt by Dr. Paver to rely on work
performed by Cord Adams. After the expert disclosure deadlines in this case had passed and
after Dr. Paver had already formed her opinion that the seat belt was subject to inadvertent

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unlatch, Mr. Adams who is a legal investigator performed various demonstrations to illustrate
inadvertent unlatch on a Toyota seatbelt and on other manufacturer’s seatbelts. Mr. Adams’s
results were provided to Dr. Paver for review. Through various motions in limine, the Toyota
Defendants challenge the work performed by Mr. Adams, the results provided to Dr. Paver, and
the information provided to the Toyota Defendants about Mr. Adams and his work. Dr. Paver
acknowledges that these demonstrations were not done according to any written protocol or test
procedure, were not based on any standard test used by any manufacturer or regulations, and
were done quickly. Along with challenging Dr. Paver’s ability to offer any opinion as to
inadvertent unlatch, they challenge her ability to rely on these demonstrations performed by Mr.
Adams to bolster her opinion as to inadvertent unlatch.
As to Dr. Paver’s anticipated testimony regarding inadvertent unlatchment, based on the
record before the Court, this Court denies the Toyota Defendants’ motion as it relates to Dr.
Paver’s ability to offer an opinion on inadvertent unlatchment but grants the motion as it relates
to Dr. Paver’s ability to offer testimony regarding, to reference, or to attempt to rely on Mr.
Adams’s work or results. Dr. Paver’s anticipated testimony regarding inadvertent unlatchment,
based on the Court’s review of the record before it, satisfies Federal Rules of Evidence 401, 402,
403, and 702.
(5)

Seat Belt Buckle Unlatchment Demonstrations

The Toyota Defendants move in limine to preclude Mr. Weaver, his counsel, and
witnesses from being allowed to make any mention of, make reference to, or put on any evidence
regarding the seat belt buckle unlatch demonstration videos or the “Report of Cord Adams”
describing those demonstrations. The Toyota Defendants argue that these video demonstrations
were untimely disclosed expert materials and that Mr. Weaver cannot show that the tests

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conducted in the demonstration videos are substantially similar to any events that happened
during the subject crash. The Toyota Defendants also make a distinction between
“demonstrations” and “tests,” arguing that Mr. Weaver performed the “demonstrations” several
times and would only show in Court the favorable “demonstration” results, making them highly
prejudicial.

The Toyota Defendants maintain that these demonstration videos should be

inadmissiable due to unreliable, non-industry testing methodology, noting that Dr. Paver testified
that the “tests” were not performed according to a written protocol or test procedure. Finally, the
Toyota Defendants state that the Report of Cord Adams regarding these demonstrations should
be excluded because Mr. Adams was never disclosed as an expert witness, the report was
untimely disclosed, and that the probative value of the report would be substantially outweighed
by the risk of confusing and misleading the jury.
Based on arguments of counsel, the Court understands that the seat belt buckle
unlatchment demonstrations include the seat belt of a Toyota vehicle like the subject 4Runner,
along with the seat belts of other manufacturers’ vehicles.

This material was not timely

disclosed expert material, as this Court previously ruled. To that extent, the Court will not
permit Mr. Weaver, his counsel, or his witnesses from making any mention of, making any
reference to or putting on any evidence regarding unlatchment demonstrations of other
manufacturers’ vehicles.
The Court also will not permit Mr. Weaver to elicit any form of expert testimony from
Mr. Adams because Mr. Adams was not timely disclosed as a potential expert witness for Mr.
Weaver.
The Court takes under advisement whether Mr. Weaver may offer the seat belt buckle
unlatchment demonstration of the seat belt of the Toyota vehicle like the subject 4Runner. The

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Court has not viewed this video demonstration. This Court is aware that the threshold for
admissibility of a test or experiment that is an attempt to reenact the original happening as
opposed to an experiment designed to show the general traits and capabilities of a material
involved in the controversy differ. See generally Carr v. Suzuki Motor Co., 655 S.W.2d 364
(Ark. 1983). The Court also is mindful that there may be considerations under Federal Rule of
Evidence 403 that preclude admission, even if the threshold for admissibility of a test or
experiment is met. For these reasons, the Court takes under advisement whether Mr. Weaver
may offer the seat belt buckle unlatchment demonstration of the seat belt of the Toyota vehicle
like the subject 4Runner. Mr. Weaver is directed to provide a copy of the demonstration to the
Court to view on or before Monday, March 3, 2014. Until such time as the Court rules on this
matter regarding the demonstration of the seat belt of the Toyota vehicle like the subject
4Runner, all counsel, the parties, and witnesses are directed to refrain from making any mention
of, making any reference to or putting on any evidence regarding these materials. If counsel
believes any such evidence becomes relevant for some purpose at trial, counsel must approach
the bench before referring to, introducing, or eliciting such evidence.
(6)

All Untimely Disclosed Expert Materials

The Toyota Defendants move in limine to preclude Mr. Weaver from being allowed to
make any mention of, make reference to, or put on any evidence regarding untimely disclosed
expert witness materials which were the subject of defendants’ motion to exclude (Dkt. No. 60).
The Toyota Defendants non-exclusively include the following materials as materials they
consider to be untimely disclosed:
a.

The Toyota Defendants identify materials related to 1997 Ford Explorer
rollover testing performed by Robert Hooker.

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Based on the

representations of counsel for Mr. Weaver during the pretrial hearing, the
Court understands that Mr. Weaver agrees to the Toyota Defendants’
motion in limine as to this sub-point. Therefore, as to this sub-point, the
Court grants the motion.
b.

The Toyota Defendants identify materials related to a 1996 Volvo XC-90
laminated glass sled test performed by Eliseco systems. Mr. Weaver
contends that these materials, if offered by Mr. Weaver, would be offered
to refute a potential argument of the Toyota Defendants that it was not
possible to produce a vehicle with laminated glass at the time the subject
4Runner was manufactured. The Court takes this portion of the motion in
limine under advisement.

Until such time as the Court rules on this

matter, all counsel, the parties, and witnesses are directed to refrain from
making any mention of, making any reference to or putting on any
evidence regarding these materials. If counsel believes any such evidence
becomes relevant for some purpose at trial, counsel must approach the
bench before referring to, introducing, or eliciting such evidence.
c.

The

Toyota

Defendants

identify

videotaped

seat

belt

unlatch

demonstrations. The Court addresses this issue specifically and separately
in Part Five of this Order, above.
d.

The Toyota Defendants identify any late disclosed crash test videos,
photographs, data, reports, or related materials whether conducted for this
case or otherwise. This sub-point of the Toyota Defendants’ motion in
limine is granted.

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e.

The Toyota Defendants identify documents, tests, data, videos, and reports
contained in Stephen Batzer’s Crashworthiness Notebook folder, Common
Glass Index folders, and Common Roof Documents folders. This subpoint of the Toyota Defendants’ motion in limine is granted.

f.

The Toyota Defendants identify materials contained in folder titled
Unwanted Safety Belt Release produced as Paver Documents-Videos.
This sub-point of the Toyota Defendants’ motion in limine is granted.

g.

The Toyota Defendants identify printouts from the Enhanced Protective
Glass Automotive Association website (“EPGAA”), numerous materials
authored by or related to the EPGAA, and videos related to alleged
benefits of enhanced protective glass. The Court takes this portion of the
motion in limine under advisement. Until such time as the Court rules on
this matter, all counsel, the parties, and witnesses are directed to refrain
from making any mention of, making any reference to or putting on any
evidence regarding these materials. If counsel believes any such evidence
becomes relevant for some purpose at trial, counsel must approach the
bench before referring to, introducing, or eliciting such evidence.

h.

The Toyota Defendants identify technical articles discussing inadvertent
unlatchment and patents for alleged alternative designs that would
allegedly prevent inadvertent release of seat belt buckles. This sub-point
of the Toyota Defendants’ motion in limine is granted.

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(7)

Plaintiff Expert’s Accident Reconstruction

Toyota Defendants state that Mr. Weaver should not be allowed to make any mention of,
make reference to, or put on any evidence regarding a purported accident reconstruction
performed by his expert Stephen Batzer. Toyota Defendants argue that Mr. Batzer’s attempted
reconstruction of the subject crash lacks sufficient underlying data, was not performed according
to any reliable methodology, and does not include reliable conclusions about the details of the
crash scenario that would be helpful to the jury. The Court takes this motion under advisement.
The Court and counsel for all parties agreed that, before Mr. Batzer takes the stand to testify,
counsel for the Toyota Defendants shall voir dire or question Mr. Batzer on these matters outside
the presence of the jury. Counsel for Mr. Weaver is directed to inform the Court of the
anticipated schedule for Mr. Batzer’s testimony to permit the Court to schedule this proceeding
outside the presence of the jury. Until such time as the Court rules on this matter, all counsel, the
parties, and witnesses are directed to refrain from making any mention of, making any reference
to or putting on any evidence regarding a purported accident reconstruction performed by Mr.
Weaver’s expert Mr. Batzer.
(8)

Size of Company or Net Worth

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence of a suggestion that the jury should consider the net worth or financial status of
defendants or disparity in size and/or wealth of the parties, unless and until the Court should find
that such matters are relevant and their probative value outweighs the prejudicial effect.
Therefore, the Court grants this motion. This ruling applies to Mr. Weaver, as well as to Toyota

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Defendants. If counsel believes any such evidence becomes relevant for some purpose at trial,
counsel must approach the bench before referring to, introducing, or eliciting such evidence.
(9)

Untimely Disclosed Evidence

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence involving testimony that has not been properly and timely disclosed in response to
interrogatories, requests for production, or other written discovery. Therefore, the Court grants
this motion. This ruling applies to Mr. Weaver, as well as to Toyota Defendants. If counsel
believes any such evidence becomes relevant for some purpose at trial, counsel must approach
the bench before referring to, introducing, or eliciting such evidence.
(10)

Undisclosed or Unrelated Defects

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence regarding any alleged defects of the subject vehicle, or any of its component parts,
which have not been previously disclosed to the Toyota Defendants or are not causally connected
to the accident made the basis of this lawsuit or Micah Weaver’s injuries and damages. All
parties agree that the active defect theories currently pled by Mr. Weaver and supported by Mr.
Weaver’s expert witnesses relate to the design of the subject 4Runner’s roof and glazing
components. The parties disagree on the theories of inadvertent unlatch, but those theories are
addressed specifically and separately by the Court in this Order. With that, the Court grants this
motion. If counsel believes any such evidence becomes relevant for some purpose at trial,
counsel must approach the bench before referring to, introducing, or eliciting such evidence.

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Based on Mr. Weaver’s representations to the Court during the pretrial hearing that this point is
agreed to, it is granted.
(11)

Expert Testimony Not Previously Disclosed

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence regarding the opinions, bases or conclusions of experts regarding the subject 4Runner’s
safety, performance, design, manufacture, or marketing, the cause of the accident, and the cause
of Micah Weaver’s injuries or any damages, which were not properly disclosed pursuant to the
Federal Rules of Civil Procedure, any applicable order of the Court, or the parties’ agreement.
With that, the Court grants this motion. This ruling applies to Mr. Weaver, as well as to Toyota
Defendants. If counsel believes any such evidence becomes relevant for some purpose at trial,
counsel must approach the bench before referring to, introducing, or eliciting such evidence.
Based on Mr. Weaver’s representations to the Court during the pretrial hearing that this point is
agreed to, it is granted.
(12)

Statements Regarding “Consumer Safety” As a Purpose for Suit

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence of a suggestion that this case is one brought to establish standards of consumer safety or
to enforce consumer safety principles, or that the reason for bringing this suit is based on a desire
to enhance consumer safety, or any statement of similar import. With that, the Court grants this
motion. If counsel believes any such evidence becomes relevant for some purpose at trial,
counsel must approach the bench before referring to, introducing, or eliciting such evidence.

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Based on Mr. Weaver’s representations to the Court during the pretrial hearing that this point is
agreed to, it is granted.
(13)

Interpretations of Defendants’ Documents by Plaintiff’s Experts

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence of any attempt by Mr. Weaver’s experts to provide “interpretation” of the Toyota
Defendants’ internal documents. With that, the Court grants this motion. If counsel believes any
such evidence becomes relevant for some purpose at trial, counsel must approach the bench
before referring to, introducing, or eliciting such evidence.

Based on Mr. Weaver’s

representations to the Court during the pretrial hearing that this point is agreed to, it is granted.
(14)

Inflammatory Reference to Defendants

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence of a suggestion that the Toyota Defendants are foreign or alien; that the Toyota
Defendants take advantage of the poor or the unsophisticated; that the Toyota Defendants are
callous or unconcerned about safety; or any other statement, argument, inference, or comment
which would tend to create or show that there is a conflict between the Toyota Defendants’
business and consumers or that the Toyota Defendants are callous, greedy or overreaching. With
that, the Court grants this motion. If counsel believes any such evidence becomes relevant for
some purpose at trial, counsel must approach the bench before referring to, introducing, or
eliciting such evidence. Based on Mr. Weaver’s representations to the Court during the pretrial
hearing that this point is agreed to, it is granted.

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(15)

Plaintiff’s Financial Condition

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence of documents regarding Mr. Weaver’s finances, inability to pay medical or other
expenses, non-existent or insufficient insurance, or any other matter relating to plaintiff’s
financial status. With that, the Court grants this motion. If counsel believes any such evidence
becomes relevant for some purpose at trial, counsel must approach the bench before referring to,
introducing, or eliciting such evidence.

Based on Mr. Weaver’s representations to the Court

during the pretrial hearing that this point is agreed to, it is granted.
(16)

Intended Use of Judgment Proceeds

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence regarding how or in what manner Mr. Weaver intends to spend or otherwise distribute
proceeds from any judgment or verdict rendered in this case. With that, the Court grants this
motion. If counsel believes any such evidence becomes relevant for some purpose at trial,
counsel must approach the bench before referring to, introducing, or eliciting such evidence.
Based on Mr. Weaver’s representations to the Court during the pretrial hearing that this point is
agreed to, it is granted.
(17)

Reference to Settlement Discussions

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence regarding settlement discussions between the Toyota Defendants and Mr. Weaver
arising out of the accident at issue. With that, the Court grants this motion. If counsel believes

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any such evidence becomes relevant for some purpose at trial, counsel must approach the bench
before referring to, introducing, or eliciting such evidence.

Based on Mr. Weaver’s

representations to the Court during the pretrial hearing that this point is agreed to, it is granted.
(18)

Amount of Damages

The Court denies this motion but cautions all counsel not to use voir dire in an attempt to
commit the jury to a certain case theory, point of view, or amount of damages prior to hearing all
of the evidence and being instructed on the law by the Court.
(19)

Reference to Representation by Defense Counsel, Size, or Location of
Law Firms

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence that the attorneys for Toyota Defendants regularly represent Toyota, other defendants,
corporations, insurance companies, or manufacturers in lawsuits, or that the Toyota Defendants
represent Toyota in other lawsuits; make mention of the number of attorneys who are members
of the firm in which counsel for the Toyota Defendants’ practice, or the number of attorneys who
have appeared on the Toyota Defendant’s behalf in this case; the residence of the lawyers
representing the Toyota Defendants at any trial, deposition, or court proceeding in this matter.
With that, the Court grants the motion. If counsel believes any such evidence becomes relevant
for some purpose at trial, counsel must approach the bench before referring to, introducing, or
eliciting such evidence. Based on Mr. Weaver’s representations to the Court during the pretrial
hearing that this point is agreed to, it is granted.
(20)

Evidence of Recalls

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
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evidence regarding any alleged recalls, service campaigns, or other similar matters which are
unrelated to Mr. Weaver’s defect allegations in this case, the accident made the basis of this
lawsuit, and/or Micah Weaver’s injuries and damages. With that, the Court grants this motion.
If counsel believes any such evidence becomes relevant for some purpose at trial, counsel must
approach the bench before referring to, introducing, or eliciting such evidence.

Based on Mr.

Weaver’s representations to the Court during the pretrial hearing that this point is agreed to, it is
granted.
(21)

Prior Suits or Jury Verdicts Involving Defendants

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence suggesting that the Toyota Defendants may have been involved in any prior suits, or
that a party has never been involved in a prior suit, or that another jury entered a verdict against
Toyota Defendants in another lawsuit. With that, the Court grants this motion. If counsel
believes any such evidence becomes relevant for some purpose at trial, counsel must approach
the bench before referring to, introducing, or eliciting such evidence. Based on Mr. Weaver’s
representations to the Court during the pretrial hearing that this point is agreed to, it is granted.
(22)

Use of Exhibits That Have Not Been Produced or Made Available for
Inspection

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence related to an exhibit that is not available for inspection before it is displayed to the jury.
With that, the Court grants this motion. Based on Mr. Weaver’s representations to the Court
during the pretrial hearing that this point is agreed to, it is granted.

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(23)

Accident History of the Product Line

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence regarding the accident history of Toyota vehicles or vehicles designed, manufactured,
or sold by Toyota or related companies, including any reference to the Toyota Defendants as “a
high insurance risk” or “high risk” manufacturer or other such terms calculated to bring before
the jury accidents or an accident history that involved vehicles designed, manufactured, or sold
by Toyota Defendants or related companies. With that, the Court grants this motion. If counsel
believes any such evidence becomes relevant for some purpose at trial, counsel must approach
the bench before referring to, introducing, or eliciting such evidence. Based on Mr. Weaver’s
representations to the Court during the pretrial hearing that this point is agreed to, it is granted.
(24)

Attempt to Call Attorneys as Witnesses

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would attempt to call counsel for the Toyota Defendants, including
in-house counsel, as witnesses in this matter. With that, the Court grants this motion. If counsel
believes any such evidence becomes relevant for some purpose at trial, counsel must approach
the bench before referring to, introducing, or eliciting such evidence. Based on Mr. Weaver’s
representations to the Court during the pretrial hearing that this point is agreed to, it is granted.
(25)

Pre-Trial Matters

Counsel for Mr. Weaver agreed during the pretrial hearing that neither he, Mr. Weaver,
nor witnesses for Mr. Weaver would make any mention of, make any reference to, or put on any
evidence of any action by the Court in ruling upon any matter prior to the actual trial of this case
or that the pleadings or other matters filed by the Toyota Defendants were in a particular form or

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of a particular nature, including the filing and rulings of the Court regarding motions in limine,
the discovery process, discovery disputes, Court rulings regarding discovery, or other matters,
which should be resolved prior to the trial of this matter and outside the presence of the jury.
With that, the Court grants this motion. If counsel believes any such evidence becomes relevant
for some purpose at trial, counsel must approach the bench before referring to, introducing, or
eliciting such evidence. Based on Mr. Weaver’s representations to the Court during the pretrial
hearing that this point is agreed to, it is granted.
(26)

Effect of Jury’s Answers

The Court has this motion under advisement. Counsel should refrain from mentioning in
voir dire and opening statement any mention, any reference, or any evidence that may tend to
inform the jury of the effect of their answers to the interrogatories to be posed to them during
their deliberations in the case, including any comments to the effect that if questions are not
answered in a certain way that no recovery will be had.
(27)

Production of Documents

The Toyota Defendants withdrew this motion in limine.
III.

Defendants’ Objections to Plaintiff’s Exhibit and Witness Lists

The Toyota Defendants object to many of Mr. Weaver’s exhibits and one of his witnesses
(Dkt. No. 99). With regard to the specific exhibits objected to by the Toyota Defendants,
counsel represented to the Court that many of the objections lodged relate to other matters raised
through the in limine motions filed by Mr. Weaver and the Toyota Defendants. Further, counsel
for Mr. Weaver represented to the Court at the pretrial hearing that he intended to pare down his
exhibit list prior to trial. To the extent this Court’s other pretrial rulings and Mr. Weaver’s pared
down exhibit list do not resolve the Toyota Defendants’ objections to Mr. Weaver’s exhibits,

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counsel are directed to refrain from making any mention of, making any reference to, or putting
on any evidence regarding the exhibits to which the Toyota Defendants have lodged objections
until those objections have been resolved. If counsel believes any such evidence becomes
relevant for some purpose at trial, counsel must approach the bench before referring to,
introducing, or eliciting such evidence.
The Toyota Defendants also object to the identification of Cord Adams as a witness in
this matter.

The Toyota Defendants argue that Mr. Adams has never been disclosed or

designated as a testifying expert witness, that he does not appear to be qualified to offer
testimony or opinions regarding seat belt design or testing, and that the demonstrations he
conducted are not the product of any reliable methodology. Mr. Weaver responds that Mr.
Adams is not an expert witness but instead a fact witness who, if called at all, would be called to
authenticate the seatbelt demonstrations Mr. Weaver intends to offer into evidence, pending this
Court’s ruling on the Toyota Defendants’ objections to such evidence. The Court takes this
objection under advisement. Until such time as the Court rules on this matter, all counsel, the
parties, and witnesses are directed to refrain from making any mention of, making any reference
to or putting on any evidence regarding these materials. If counsel believes any such evidence
becomes relevant for some purpose at trial, counsel must approach the bench before referring to,
introducing, or eliciting such evidence.
IV.

Plaintiff’s Motion in Limine

The Court grants in part and takes under advisement in part Mr. Weaver’s motion in
limine (Dkt. No. 100).

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(1)

When or Why Plaintiff Employed an Attorney

Counsel for the Toyota Defendants agreed during the pretrial hearing that neither he,
corporate representatives of the Toyota Defendants, nor witnesses for the Toyota Defendants
would make any mention of, make any reference to, or put on any evidence as to when or why
Mr. Weaver employed an attorney. With that, the Court grants this motion. If counsel believes
any such evidence becomes relevant for some purpose at trial, counsel must approach the bench
before referring to, introducing, or eliciting such evidence.

Based on the Toyota Defendants’

representations to the Court during the pretrial hearing that this point is agreed to, it is granted.
(2)

The Employment of John Merritt and/or the Merritt Law Firm

Counsel for the Toyota Defendants agreed during the pretrial hearing that neither he,
corporate representatives of the Toyota Defendants, nor witnesses for the Toyota Defendants
would make any mention of, make any reference to, or put on any evidence as to the
employment of John Merritt and/or the Merritt Law Firm. With that, the Court grants this
motion. If counsel believes any such evidence becomes relevant for some purpose at trial,
counsel must approach the bench before referring to, introducing, or eliciting such evidence.
Based on the Toyota Defendants’ representations to the Court during the pretrial hearing that this
point is agreed to, it is granted.
(3)

Marijuana Use

The Court takes this portion of Mr. Weaver’s motion in limine under advisement. Until
such time as the Court rules on this matter, all counsel, the parties, and witnesses are directed to
refrain from making any mention of, making any reference to or putting on any evidence
regarding Micah Weaver’s alleged marijuana use prior to the accident in question or that postmortem lab test results indicated prior marijuana use by Micah Weaver. If counsel believes any

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such evidence becomes relevant for some purpose at trial, counsel must approach the bench
before referring to, introducing, or eliciting such evidence.
(4)

Prior Traffic Citations

Mr. Weaver argues that defendants should not be able to introduce prior traffic citations
against the decedent because such evidence is inadmissible character or habit evidence, noting
that the instances which the defendants may attempt to introduce are too few. He further argues
that the probative value of this evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the jury, and wastes the Court’s time. The Court
takes this portion of Mr. Weaver’s motion in limine under advisement. Until such time as the
Court rules on this matter, all counsel, the parties, and witnesses are directed to refrain from
making any mention of, making any reference to or putting on any evidence regarding prior
traffic citations received by Micah Weaver as a result of failing to use his seatbelt. If counsel
believes any such evidence becomes relevant for some purpose at trial, counsel must approach
the bench before referring to, introducing, or eliciting such evidence.
V.

Defendants’ Objection to the Use of Deposition Testimony

The Toyota Defendants broadly object to the use or introduction of deposition testimony,
either orally or by videotape, that lacks proper foundation, includes hearsay or speculation, is
irrelevant or whose relevant value is outweighed by the risk of unfair prejudice, was not
designated in accordance with the Court’s Scheduling Order, or otherwise is not admissible
pursuant to the Federal Rules of Evidence or the Federal Rules of Civil Procedure (Dkt. No.
103).

The Toyota Defendants note that there has been no designation of any deposition

testimony by Mr. Weaver and no objections or counter-designations offered by Mr. Weaver to

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the ten depositions from which the Toyota Defendants designated testimony to present to the
jury.
With regard to any deposition testimony counsel intend to present to the jury, counsel are
instructed to submit to the Court in advance the portions of the deposition testimony counsel
intends to present to the jury, including all objections, designations, and counter-designations.
The Court will rule on objections made to the introduction of such evidence prior to such
evidence being presented to the jury. At the pretrial hearing, counsel and the Court established a
schedule for these designations to be exchanged and submitted to the Court for ruling in advance
of the witnesses being called by deposition at trial.
SO ORDERED this 28th day of February, 2014.

____________________________________
Kristine G. Baker
United States District Judge

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