Miller et al v. Four Winds International Corporation

Filing 131

MEMORANDUM DECISION AND ORDER Four Winds' Motion in Limine to Exclude Various Inadmissible Evidence, (Dkt. 88 ), is GRANTED in part and DENIED in part. Four Winds' Motion in Limine to Exclude Testimony of Larry Tompkins, (Dkt. 89 ), is DE NIED in accordance with the above memorandum. Plaintiffs' Motion for Leave to Amend Complaint to Include Claim for Punitive Damages, (Dkt. 101), is DENIED. Plaintiffs' Motion in Limine, (Dkt. 118 ), is DENIED. Four Winds' Motion in Limine to Exclude Mechanic Hearsay Statements, (Dkt. 119 ), is DENIED in accordance with the above memorandum. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PATRICIA MILLER and MARCIA
PARKER,
Plaintiffs,

Case No. 2:10-cv-00254-CWD
MEMORANDUM DECISION AND
ORDER

v.
FOUR WINDS INTERNATIONAL
CORPORATION, a Delaware
corporation; and DOES I through V,
Defendant.

INTRODUCTION
The pretrial conference in this case took place on January 30, 2012. During the
pretrial conference the Court heard oral arguments on both parties’ motions in limine and
Plaintiffs’ motion to amend their complaint to include a claim for punitive damages.
Having fully considered the parties’ motions, briefing, and oral arguments on the motions,
for the reasons discussed below, the Court will rule as follows:
(1) Four Winds’ Motion In Limine to Exclude Various Inadmissible Evidence,
(Dkt. 88), will be granted in part and denied in part;
(2) Four Winds’ Motion In Limine to Exclude Testimony of Larry Tompkins, (Dkt.
89), will be denied;

MEMORANDUM DECISION AND ORDER - 1

(3) Plaintiffs’ Motion for Leave to Amend Complaint to Include Claim for
Punitive Damages, (Dkt. 101), will be denied;
(4) Plaintiffs’ Motion In Limine, (Dkt. 118), will be denied; and
(5) Four Winds’ Motion In Limine to Exclude Mechanic Hearsay Statements, (Dkt.
119), will be denied.
DISCUSSION
1.

Four Winds’ Motion to Exclude Various Inadmissible Evidence
In its first motion in limine, (Dkt. 88), Four Winds requests that the Court exclude

five categories of evidence: (1) evidence of or references to other alleged incidents
involving problems with motorhomes other than the one at issue in this case; (2)
references to the death of Plaintiff Miller’s mother; (3) speculative evidence about the
value of the motorhome; (4) expert testimony from Paul and Steve Marton; and (5)
evidence of alleged problems with the motorhome that arose after the limited warranty
expired. Four Winds claims the above evidence is inadmissable under the Federal Rules
of Evidence. Plaintiffs disagree, and ask the Court to deny the motion with regard to all
five categories of evidence.
A.

Other Incidents

Based upon the deposition testimony of Plaintiffs’ expert Larry Tompkins, Four
Winds anticipates that Plaintiffs may offer evidence of incidents or problems involving
motorhomes other than the one at issue in this case. Specifically, during his deposition,
Mr. Tompkins testified to an incident involving another motorhome in which the
MEMORANDUM DECISION AND ORDER - 2

vehicle’s slideout extended unexpectedly while the vehicle was being driven, which is a
problem that Plaintiffs claim they experienced with the motorhome at issue in this case.1
Four Winds asserts that “Tompkins does not know if the slideout mechanism in that
incident was the same as the one on Plaintiff’s motorhome, does not know any of the
details about how the slideout came out, and does not have any other details of that
incident.” (Mem. Of Law in Supp. Of Four Winds’ Mot. In Lim. To Exclude Various
Inadmissible Evid. at 3, Dkt. 88-1.) Given Mr. Tompkins’ limited knowledge of these
other incidents, Four Winds argues that “any testimony or evidence about this or any
other alleged incident would be inadmissible without proof of substantial similarity to the
facts, circumstances, and products involved in this case.” (Id.)
In response, Plaintiffs assert that they will seek to admit this evidence only for the
purposes of qualifying Mr. Tompkins as an expert witness. (Pl.s’ Resp. To Def.’s Mot. In
lim. To Exclude Various Evid. at 3, Dkt. 129.) Plaintiffs argue that Mr. Tompkins’
experience working on other motorhomes with slideout problems is germane to Mr.
Tompkins’ qualifications as an expert in this case and that “[h]is testimony regarding
other motor homes he has inspected in the past constitute part of the basis for his
experience and knowledge about the technical specialized knowledge of engineering.”

1

According to Four Winds the “slideout is the section of a motorhome that is slid
out of the main body of the vehicle when the vehicle is parked and stationary, to provide
additional living space.” (Mem. Of Law in Supp. Of Four Winds’ Mot. In Lim. To Exclude
Various Inadmissible Evid. at 3, Dkt. 88-1.) It is undisputed that Plaintiffs’ motorhome
had three slideouts: one on the passenger side of the vehicle, and two on the driver side of
the vehicle.
MEMORANDUM DECISION AND ORDER - 3

(Id.) Plaintiffs request that the Court allow the admission of the evidence for
“foundational purposes in proving the qualifications of Plaintiffs’ expert.” (Id.)
Rule 403 of the Federal Rules of Evidence provides that, “[a]lthough 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 . . . .” Fed. R. Evid.
403. The case law establishes that evidence of prior accidents must be evaluated carefully
due to their inflammatory nature and possible misinterpretation by the jury. See Barker v.
Deere and Co., 60 F.3d 158, 162 (3d Cir. 1995) (“every court of appeals . . . agrees that
when a plaintiff attempts to introduce evidence of other accidents as direct proof of a
design defect, the evidence is admissible only if the proponent demonstrates that the
accidents occurred under circumstances substantially similar to those at issue in the case
at bar.”) Given the dangers of misleading the jury and confusion of the issues, the Ninth
Circuit requires a showing of “substantial similarity” before evidence of prior incidents is
allowed. Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991)
(“A showing of substantial similarity is required when a plaintiff attempts to introduce
evidence of other accidents as direct proof of negligence, a design defect, or notice of the
defect.”).
Here, Plaintiffs are correct that Mr. Tompkins’ experience in working on
motorhomes with issues similar to the ones alleged in this case is pertinent to, and may be
used in, establishing Mr. Tompkins’ credentials as an expert. Four Winds’ argument,
however, is well taken. Anecdotal stories of other motorhomes’slideouts moving out
MEMORANDUM DECISION AND ORDER - 4

while the vehicle is being driven, without establishing substantial similarity in the
incidents, may confuse the issues, mislead the jury, and ultimately result in unfair
prejudice to Four Winds. Given these considerations, the Court will not restrict Plaintiffs’
direct examination of Mr. Tompkins regarding his prior experience as foundation for
establishing his expert credentials, but will require that Plaintiffs demonstrate substantial
similarity through an offer of proof outside the presence of the jury before eliciting
testimony or other evidence of other incidents in which a motorhome’s slideout extended
unexpectedly.
B.

Reference to Plaintiff’s Mother’s Death

In their complaint, Plaintiffs allege that, “[b]ecause of the ongoing issues with the
RV, Ms. Miller was unable to visit with her mother on her death bed.” (Compl. at ¶ 3.12,
Dkt. 1.) During her deposition, Ms. Miller gave an emotional account of a conversation
with her mother in which she told her mother that she wanted to take her on a trip in the
motorhome once her mother was released from the hospital (which release did not
happen). Ms. Miller also testified that, after her mother passed away, she had to tell her
family that she would not be able to drive the motorhome to her mother’s funeral because
it was undergoing repairs.2 Four Winds argues that this testimony is irrelevant under Fed.

2

Ms. Miller testified as follows:
I talked to my mother. She was in the hospital because
she had headaches. And she was in the hospital on October
2nd. That night I talked to her. And she was feeling good and
everything. And she says, okay, well, I’m going home

MEMORANDUM DECISION AND ORDER - 5

R. Evid. 401, should be excluded under Fed. R. Evid. 402, and that, even if the evidence
is relevant, its probative value is substantially outweighed by the danger of unfair
prejudice under Fed. R. Evid. 403.
Rule 401 of the Federal Rules of Evidence defines “relevant evidence” as
“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.” Fed. R. Evid. 401. In their response to Four Winds’ motion, Plaintiffs state
“[t]he fact that Ms. Miller’s mother died and she [Ms. Miller] was not able to drive the
motor home to see her before her death is relevant to her inability to use the motor home
because of its defects. (Dkt. 129 at 4.) Although they do not say it in so many words, the
“fact of consequence” offered by the Plaintiffs for purposes of Rule 401 is that Ms. Miller
was unable to use the motor home due to its defects. It is unclear how the death of Ms.

tomorrow. I says, Mom, come hell or high water – you know,
because she says you didn’t take me on my trip. I said come
hell or high water, I says, I’m coming down with the coach
and, you know, we’re going out. And she says okay.
And I got a call at 5:00 o’clock in the morning, my
mother – that one of the nurses gave her the wrong king of
medications. She’s vey highly allergic, which I am. And she
went into anaphylactic shock. And before anybody knew what
was going on, she’s on life support.
Went down there. The family says can you bring the
coach so we could all – so we have extra room for everybody
to be. No, I can’t bring the coach because – because it’s not
safe to drive. It’s ...
(Dep. Of Patricia Miller at 136-137, Dkt. 88-4.)
MEMORANDUM DECISION AND ORDER - 6

Miller’s mother makes this fact any more or less probable than it would be without the
evidence.
Emotional distress damages are not available in this breach of warranty action and
Plaintiffs have not explained how Ms. Miller’s testimony concerning her mother’s death
tends to prove or disprove a fact of consequence to the determination of the case. The
Court therefore finds the evidence irrelevant under Fed. R. Evid. 401 and inadmissible
under Fed. R. Evid. 402. Moreover, even if the Court were to deem such evidence
relevant, the Court finds there is a high probability that the evidence would unfairly
appeal to the jury’s emotions and should therefore be excluded under Fed. R. Evid. 403.
“‘Unfair prejudice’ within [the] context [of Rule 403] means an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.” Fed. R. Evid. 403, Advisory Committee Notes (emphasis added).
Based on the above discussion, Four Winds’ motion will be granted on this issue
and Plaintiffs will be prohibited from introducing any evidence of or making references to
Ms. Miller’s mother’s death or Ms. Miller’s inability to drive the motorhome to her
mother’s funeral.
C.

Speculation About Value of Motorhome

Four Winds once again raises their contention that Plaintiffs have not put forward
any evidence concerning the diminution in value of the motorhome, which is the ordinary
measure of damages for breach of warranty under the Idaho Code and requires a showing
of the difference between the fair market value of the vehicle as warranted and its fair
MEMORANDUM DECISION AND ORDER - 7

market value as delivered in the allegedly defective condition. This issue previously was
raised in Four Winds’ motion for summary judgment and addressed in the Court’s
Memorandum Decision and Order entered on October 25, 2011. (Dkt. 100.) In that Order,
the Court held that Plaintiffs may present evidence of “special circumstances” in this
case, which provides an exception to the ordinary measure of damages for breach of
warranty under Idaho law and allows the buyer to establish damages “in any manner
which is reasonable.” Idaho Code § 28-2-714(1).3
Four Winds now asks the Court to prohibit Plaintiffs from testifying that, in their
opinion, the motorhome is worthless. Four Winds argues that such testimony is
speculation and may not be used to establish damages under Idaho law. Four Winds’
argument, however, is not supported by Idaho law. “It is a settled rule in [Idaho] that the
owner of property is a competent witness to its value.” Garrett v. Neitzel, 285 P. 472
(Idaho 1930). Indeed, the Idaho Supreme Court has expressly stated that “[t]he owner of
an automobile is competent to testify to its value.” Mitchell v. Dyer, 341 P.2d 891, (Idaho
1959) (holding that plaintiff’s testimony concerning value of car before and after an
accident to establish damages was properly admitted by trial court).

3

In Jensen v. Seigel Mobile Homes Group, 668 P.2d 65 (Idaho 1983), the Idaho
Supreme Court indicated that the inability to prove the amount of loss in value caused by
a breach of warranty constitutes a special circumstance, “which may enable [plaintiffs] to
recover on an alternative measure of damages.” Id. at 73. The Court will not at this time
entertain arguments addressed in its Memorandum Decision and Order issued on October
25, 2011.
MEMORANDUM DECISION AND ORDER - 8

Four Winds’ motion in limine to preclude Plaintiffs’ testimony as to the value of
the motorhome is denied.
D.

Expert Testimony from Paul and/or Steve Marton

Four Winds moves the Court for an order precluding Plaintiffs from offering Paul
and Steve Marton as expert witnesses.
On February 24, 2011, Plaintiffs moved the Court to modify the case management
order and extend the expert witness disclosure deadline so that they could disclose Paul
and Steve Marton as experts. (Dkt. 32.) That motion was denied based on Plainitffs’
failure to show good cause for the late disclosure. (Dkt. 34.) Although the Court denied
Plaintiffs’ request to name the Martons as experts, the Order expressly provides that
“[n]othing in this Order should be construed as limiting Plaintiffs from utilizing Paul and
Steve Mart[o]n as fact witnesses in this case if they are competent to testify as such under
the Federal Rules of Evidence.” (Order at 4 n.3, Dkt. 34) (emphasis added). Four Winds
requests in its motion in limine that “[t]he Court should adhere to its February 25 ruling
and Order by excluding any expert testimony from Paul or Steve Marton.” (Dkt. 88-1 at
11.)
In response, Plaintiffs state that, after the February 25, 2011 Order, they again
moved to extend expert witness disclosure deadlines. Plaintiffs state that the motion was
heard on May 17, 2011, “at which time the Court ruled that it would not exclude Paul and
Steve Marton from offering such evidence, as it remains to be seen if they are the types of
expert witness whose testimony must be disclosed prior to trial.” (Pl.s’ Resp. To Def.’s
MEMORANDUM DECISION AND ORDER - 9

Mot. In lim. at 5, Dkt. 129.) Contrary to Plaintiffs’ assertion, the Court did not alter its
previous ruling. The Martons were not timely disclosed as expert witnesses and they may
not be offered as such at trial. The extent to which either Marton (or other lay witnesses)
may give opinion testimony will be addressed by the Court at the time of trial pursuant to
Rule 701 of the Federal Rules of Evidence.
E.

Post-Warranty Problems

Four Winds moves the Court for an order excluding any alleged problems or issues
with the motorhome arising after the expiration of the limited warranty–June 12, 2009.
Specifically, Four Winds seeks the exclusion of a recall notice issued on May 16, 2011,
by the supplier of the refrigerator in Plaintiffs’motorhome. Four Winds argues that the
recall has no relevance to the issues presented in this case because it was issued long after
the limited warranty expired. Four Winds also argues that the recall notice constituted a
subsequent remedial measure under Rule 407 of the Federal Rules of Evidence and is
inadmissible under that rule.
Plaintiffs argue that Four Winds’ reliance on Rule 407 is misplaced, pointing out
that the rule bars subsequent remedial measures from being used as evidence of design
defect, which is not at issue in this case. Plaintiffs also anticipate that Four Winds’
witnesses will testify that there were no problems with the motorhome or that the failure
of the refrigerator to function appropriately involved operator error, and that the Court
should allow the admission of the recall notice as impeachment evidence.

MEMORANDUM DECISION AND ORDER - 10

Rule 407 expressly contemplates that subsequent remedial measures may be used
for purposes of impeachment. Therefore, the recall notice may be used for that purpose.
The Court finds, however, that it will be in a better position to rule on this issue at trial.
The motion will therefore be denied on this issue at this time without prejudice.
2.

Four Winds’ Motion to Exclude the Expert Testimony of Larry Tompkins
Plaintiffs have disclosed mechanical engineer Larry L. Tompkins as an expert

witness. According to Mr. Tompkins’ expert report, he was retained to determine the
extent of the service issues with Plaintiffs’ motorhome, the number of repair attempts, and
the likelihood of future problems with the motorhome. (Dkt. 127-1.) Four Winds moves
the Court for an order excluding certain opinions espoused by Mr. Tompkins during his
deposition. Specifically, Four Winds challenges the following opinions:
1.

The service issues Plaintiffs have experienced are the result of the
motorhome not being designed to a “deflection criteria.” (Dep. Of Larry
Tompkins, 12-13, Dkt. 89-3.)

2.

Very little durability and reliability testing is done by motorhome
manufacturers. (Id. at 21-22.)

3.

The service history for Plaintiffs’ motorhome is unacceptable. (Id. at 6869.)

4.

The design of the motorhome has inadequate stiffness and that inadequacy
has caused the problems Plaintiffs have allegedly experienced. (Id. at 109111.)

5.

The alleged floor crowing, passenger slideout, and galley/kitchen slideout
issues all stem from defects in design of the motorhome. (Id. at 122-23,
125-26.)

6.

Four Winds inadequately tested the motorhome prior to selling the Presidio

MEMORANDUM DECISION AND ORDER - 11

model. (Id. at 137-38.)
7.

The defects in the design of the passenger slideout create the possibility for
loss of control or a vehicle rollover. (Id. at 142.)

Four Winds argues that the above opinions are inadmissible for three reasons.
First, Four Winds argues that the opinions concerning the design of the motorhome are
irrelevant to Plaintiffs’ claim for breach of warranty. Second, Four Winds argues that Mr.
Tompkins failed to supply the factual foundation for these opinions and that they are
nothing more than his own subjective beliefs and unfounded speculation. Third, Four
Winds argues that Mr. Tompkins’ opinions are not based upon reliable principles and
methods and must therefore be excluded under Fed. R. Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the United
States Supreme Court “charged trial judges with the responsibility of acting as
gatekeepers to ‘ensure that any and all scientific testimony . . . is not only relevant, but
reliable.” Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir. 2001)
(quoting Daubert, 509 U.S. at 589). Then, in Kumho Tire Co., LTD v. Carmichael, 526
U.S. 137, 147 (1999), the Court clarified that this gate-keeper function applies to all
expert testimony, not just testimony based in science.
Rule 702 of the Federal Rules of Evidence, which governs the admissibility of
expert opinion testimony, provides that “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or

MEMORANDUM DECISION AND ORDER - 12

education, may testify thereto in the form of an opinion or otherwise” if three conditions
are met. Fed. R. Evid. 702. Those three conditions include: “(1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts
of the case.” Fed. R. Evid. 702. Four Winds attacks Mr. Tompkins’ opinions on all three
conditions.
A.

Opinions Concerning Design

Rule 702 requires that the evidence “assist the trier of fact.” Fed. R. Evid. 702.
This requires that the evidence be relevant. Guidroz-Brault, 254 F.3d at 829. Four Winds
argues that any testimony concerning “design defects” is irrelevant in this case and should
therefore be excluded.
The limited warranty at issue in this case provides for the repair or replacement of
defective material or workmanship. (Dkt. 67-3.) It also warrants that “the structural
components of your Presido RV will be free from substantial defects in material and
workmanship.” (Id.) However, the warranty expressly excludes “[i]tems that are working
as designed but that you are unhappy with because of the design.” (Id.)
Because the limited warranty does not cover design defects, the Court agrees that,
in the abstract, evidence concerning defects in the design of the motorhome is irrelevant
to Plaintiffs’ claim for breach of warranty. However, based upon Mr. Tompkins’ expert
report, it appears to the Court that the line between design defects and whether Four
Winds breached the terms of the limited warranty in this case is less clear than Four
MEMORANDUM DECISION AND ORDER - 13

Winds would have the Court conclude.
In his expert report, and during his deposition testimony, Mr. Tompkins offered
opinions concerning what he refers to as “deflection” problems associated with Plaintiffs’
motorhome. Mr. Tompkins’ opinion, as the Court understands it, is that the frame of the
motorhome is not structurally stiff enough and that when the vehicle is driven or put on
jacks, the walls of the motorhome become deformed causing the slideouts not to fit
properly. It is not entirely clear whether Mr. Tompkins’ opinions concerning the
motorhome’s deflection problems are purely a design issue, related to defects in material
or workmanship, or a combination of both. Moreover, assuming for the moment that the
deflection problems are a product of a design defect, it is unclear whether that alone
would render Mr. Tompkins’ opinions on the subject irrelevant. Plaintiffs claim that Four
Winds did not adequately repair the problems with the slideouts. If the reason the
slideouts were not, and perhaps could not, be repaired was because every time the
motorhome was driven the walls became deformed due to the deflection problem, the
deflection issue may very well be relevant to Plaintiffs’ breach of warranty claim. The
parties have not directly addressed this issue and the Court will not do so on its own.
The Court will not rule on the relevance of particular statements made during Mr.
Tompkins’ deposition, or in his expert report, at this time, but will caution Plaintiffs that
evidence related solely to the design of the motor home most likely will be found
irrelevant to Plaintiffs’ breach of warranty claim and susceptible to proper and sustained

MEMORANDUM DECISION AND ORDER - 14

objection if Four Winds makes such objection at the time of trial.4 However, the Court
will be better situated to rule on the relevance and admissibility of Mr. Tompkins’
opinions at the time of trial when the Court will have the benefit of Mr. Tompkins’ actual
testimony. Four Winds’ motion requesting a ruling in limine on this issue will therefore
be denied.
B.

Factual Foundation for Opinions

Under Rule 702 of the Federal Rules of Evidence, an expert opinion must be
“based upon sufficient facts or data.” Fed. R. Evid. 702. “[A]n Expert must back up his
opinion with specific facts.” U.S. v. Various Slot Machines on Guam, 658 F.2d 697, 700
(9th Cir. 1981). And, as the United States Supreme Court has stated, “expert testimony
must have a traceable, analytical basis in objective fact before it may be considered . . . .”
Bragdon v. Abbot, 524 U.S. 624, 653 (1998).
In his expert report, Mr. Tompkins states that
Slide-out failures can be considered a safety-related defect. In
the event of a failure to retain a slide-out in the retracted
position during over-the-road travel, uncommanded extension
of a slide-out could potentially result in a collision with
another vehicle or a center-of-gravity shift that could result in
a loss of control or a rollover accident.

(Tompkins’ Expert Report at 2, Dkt. 127-1.) He made a similar statement in his
deposition. Four Winds argues that Mr. Tompkins has no factual basis for this opinion

4

The Court anticipates that the jury will be instructed on the scope of the limited
warranty.
MEMORANDUM DECISION AND ORDER - 15

and that such testimony should be excluded. Specifically, Four Winds directs the Court to
Mr. Tompkins’ deposition, in which he testified that he could not calculate how far the
center of gravity of a motorhome would need to shift to cause a rollover without knowing
the weight of the slideout and the location of the center of gravity in the vehicle. (Dep. Of
Tompkins at 143-44, Dkt. 89-3.) Mr. Tompkins also stated that, although the analysis
could be done, he did not conduct such an analysis in this case. (Id. at 144-45.)
Plaintiffs argue that Mr. Tompkins’ opinion is based on sufficient facts, including
multiple inspections of the motorhome, discussions with mechanics, discussions with the
service repair facility, discussions with the owners and operators, service records, and
testing of the motorhome.
The Court will be better situated during trial to rule on this issue. Based upon Mr.
Tompkins’ experience, the general opinion that a slideout extending uncommanded
posses a safety risk may not be problematic under Rule 702. However, a more specific
opinion, such as an opinion that the slideout in this case would cause Plaintiffs’
motorhome to roll-over, is the type of opinion requiring a more definable factual basis.
Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1402 (D. Or. 1996) (excluding
expert testimony on the ground that it was “an untested hypothesis”). Because pretrial
evidentiary rulings are prospective in nature–where the court has not yet seen the
challenged evidence–and because they restrict the opposing party’s presentation of his or
her case, courts have recognized that motions in limine should only be granted sparingly
and only in “those instances when the evidence plainly is ‘inadmissible on all potential
MEMORANDUM DECISION AND ORDER - 16

grounds.’” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218-19 (D. Kan. 2007)
(quoting Townsend v. Benya, 287 F. Supp. 2d 868, 872 (N.D. Ill. 2003)). Here, the Court
cannot say that Mr. Tompkins’ opinions concerning the safety risks created by the
slideouts on Plaintiffs’ motorhome are inadmissible on all potential grounds without
having the benefit of hearing Mr. Tompkins’ testimony at trial. Four Winds’ motion will
therefore be denied on this issue.
C.

Reliable Principles or Methods

Under Rule 702 of the Federal Rules of Evidence, expert opinions must be “the
product of reliable principles and methods.” Fed. R. Evid. 702.
In his report, Mr. Tompkins states that, based on “[t]he difference in deflection
between the loading condition when the vehicle is on its wheel[s] and the loading
condition when the vehicle is on its leveling jacks,” “[t]he chassis and body of this motor
home do not have sufficient stiffness to prevent this difference in deflection.” (Dkt. 127-1
at 10.) Mr. Tompkins also opines that the rate at which Plaintiffs’ motorhome required
repairs was unacceptable. (Id. at 17.) Four Winds argues that Mr. Tompkins’
methodology used in forming these opinions was unreliable and that he should be
prohibited from offering those opinions during trial.
Plaintiffs argue that both of the above challenged opinions are based upon Mr.
Tompkins’ education and work experience. For instance, Plaintiffs point out that Mr.
Tompkins has a degree in mechanical engineering, and for the last forty years he has
designed and tested vehicles, trucks and heavy trucks. Plaintiffs argue that the application
MEMORANDUM DECISION AND ORDER - 17

of Mr. Tompkins’ experience to the facts of this case constitutes a reliable methodology
within the meaning of Rule 702.
Plaintiffs are correct that experience may act as the basis for a reliable opinion for
the purposes of Rule 702. The text of Rule 702 expressly contemplates that an expert may
be qualified on the basis of experience. And, the Advisory Committee Notes to Rule 702
state that “[n]othing in this amendment is intended to suggest that experience alone–or
experience in conjunction with other knowledge, skill, training or education–may not
provide a sufficient foundation for expert testimony.” Fed. R. Evid. 702 Advisory
Committee Notes to 2000 amendment. “In certain fields, experience is the predominant, if
not sole, basis for a great deal of reliable expert testimony.” Id. (citing U.S. v. Jones, 107
F.3d 1147 (6th Cir. 1997)); See also, Tassin v. Sears Roebuck, 946 F. Supp. 1241, 1248
(M.D. La. 1996) (design engineer’s testimony can be admissible when the expert’s
opinions “are based on facts, a reasonable investigation, and traditional
technical/mechanical expertise, and he provides a reasonable link between the
information and procedures he uses and the conclusions he reaches”).
“If the witness is relying solely or primarily on experience, then the witness must
explain how that experience leads to the conclusion reached, why that experience is a
sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
Fed. R. Evid. 702 Advisory Committee Notes to 2000 amendment. The trial court’s
gatekeeping function requires more than simply “taking the expert’s word for it.” Daubert
v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995). However, “the
MEMORANDUM DECISION AND ORDER - 18

trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary
system,” U.S. v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d
1074, 1078 (5th Cir. 1996), and “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 595.
Here, Mr. Tompkins’ opinions are based on his experience. And, while he is not
particularly articulate in his deposition testimony, especially in the excerpts provided to
the Court by Four Winds, he does not ask the Court to accept his opinions ipsi dixit.
Indeed, upon review of his expert report, Mr. Tompkins refers to several standards and
manuals related to engineering design and test standards, which were attached to his
report. He also outlines his experience and, during his deposition, attempts to explain how
he came to the conclusion that the rate of repairs was unacceptable. For instance, he states
that, when he first inspected the vehicle, 40% of the miles were accumulated transporting
the vehicle to and from warranty repair facilities. Based on his experience, he concluded
that this was excessive.
Mr. Tompkins satisfies the minimum reliability requirements under Rule 702 and
the concerns raised by Four Winds may well be cured through “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
proof.” Daubert, 509 U.S. at 595. Therefore, Four Winds motion in limine on this issue
will be denied.

MEMORANDUM DECISION AND ORDER - 19

3.

Plaintiffs’ Motion to Include Claim for Punitive Damages
Plaintiffs request that the Court allow them to amend their complaint to present a

claim for punitive damages. (Dkt. 101.) In support of their motion, Plaintiffs claim that
“Defendant Four Winds International Corporation has acted oppressively, maliciously,
and outrageously with respect to its actions toward the [Plaintiffs].” (Mem. In Supp. Of
Pl.s’ Mot. For Punitive Damages at 2, Dkt. 102.) For the reasons that follow, Plaintiffs’
motion will be denied.
Claims for punitive damages are substantive and Idaho law is controlling on this
issue. Strong v. Unumprovident Corp., 393 F. Supp. 2d 1012, 1025 (D. Idaho 2005).
Pursuant to Idaho Code § 6-1604, “a party may, pursuant to a pretrial motion and after
hearing before the court, amend the pleadings to include a prayer for relief seeking
punitive damages.” Idaho Code § 6-1604(2). “The court shall allow the motion to amend
the pleadings if, after weighing the evidence presented, the court concludes that, the
moving party has established at such hearing a reasonable likelihood of proving facts at
trial sufficient to support an award of punitive damages.” Id.
The Idaho Supreme Court has indicated that trial courts should permit a claim for
punitive damages to proceed when a defendant acted in a manner that was “an extreme
deviation from reasonable standards of conduct, and that the act was performed by the
defendant with an understanding of or disregard for its likely consequences.” Garnett v.
Transamerica Ins. Services, 800 P.2d 656, 668 (Idaho 1990) (quoting Cheney v. Palos
Verdes Inv. Corp., 665 P.2d 661, 669 (Idaho 1983)).
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The Idaho Supreme Court also has made clear that the determination of whether a
party should be permitted to assert a claim for punitive damages “revolves around
whether the plaintiff is able to establish the requisite intersection of two factors: a bad act
and a bad state of mind.” Seiniger Law Office, P.A. v. N. Pac. Ins. Co., 178 P.3d 606, 615
(Idaho 2008). Concerning the second factor, the Idaho Supreme Court has clarified that
“[t]he mental state required to support an award of punitive damages is an extremely
harmful state of mind, whether that be termed malice, oppression, fraud or gross
negligence; malice, oppression, wantonness; or simply deliberate or willful.” Id.
Here, Plaintiffs direct the Court to five alleged “bad acts” that they argue
demonstrate the extremely harmful state of mind required to present a claim for punitive
damages. Each will be addressed below.
First, Plaintiffs argue that they were not dealt with in a straight-forward manner
and were “frustrated by the number of people at Four Winds that they had to deal with,
never being able to talk to the same person about her issues.” (Dkt. 102 at 12.) Four
Winds argues that having multiple people available to address customer concerns does
not evince mal intent. Four Winds also argues that “[t]here is absolutely no evidence in
this case–expert or otherwise–that Four Winds’ handling of customer-service calls
constitutes extreme or irrational business conduct.” (Def.’s Brief in Resp. To Pl.s’ Mot.
For Leave to Amend Compl. To Include Claim for Punitive Damages at 7, Dkt. 107.) The
Court agrees and finds that this alleged “bad act” does not demonstrate the intent
necessary to present a claim for punitive damages.
MEMORANDUM DECISION AND ORDER - 21

Second, Plaintiffs argue that Four Winds’ efforts to inspect and repair the
motorhome were “riddled with false representations and ineffective attempts at repair.”
(Id.) In support of their claim that misrepresentations were made, Plaintiffs direct the
Court to the incident in which Ms. Miller drove the RV to California only to find out that
the repair shop was closed and she had to wait six months for repairs before she could
return the RV to Idaho. Four Winds asserts that Plaintiff was informed that a Four Winds’
employee could transport the motorhome to California, but that Plaintiff said she needed
to discuss the issue with her family. Four Winds claims that the repair facility did not
have an appointment scheduled for Ms. Miller because neither Four Winds nor the repair
facility knew when Plaintiff was going to arrive.
Four Winds also asserts that, even assuming the truth of Plaintiffs’ allegations
about long waits and slow repairs, there is no evidence of bad intent to support a claim of
punitive damages. Four Winds has the better argument on this issue. “A breach of
contract by itself is not sufficient to warrant an award of punitive damages.” Gen. Auto
Parts Co. v. Genuine Parts Co., 979 P.2d 1207, 1211 (Idaho 1999). And, even in cases
where there is evidence that a contract was intentionally breached, a claim for punitive
damages requires evidence of malice on the part of the breaching party. Id. In the absence
of evidence of bad intent, allowing a plaintiff to pursue a claim of punitive damages is
improper. Although Ms. Miller’s experience with the repair process in this case was
undoubtedly frustrating, because Plaintiffs have presented no evidence of bad faith, the
Court finds that this alleged “bad act” does not demonstrate the intent necessary to
MEMORANDUM DECISION AND ORDER - 22

present a claim for punitive damages.
Third, Plaintiffs allege that Rick Drinkwine–Four Winds’ former customer affairs
manager–verbally told Ms. Miller that Four Winds would replace the RV if one could be
found, and that the failure of Four Winds to replace the RV after such a representation
demonstrates the bad intent necessary to present a claim for punitive damages. Four
Winds argues that there was nothing “untoward” about this representation–Four Winds
admits such conversations took place and that the company was simply unable to locate a
replacement RV.
Fourth, Plaintiffs argue that Four Winds agreed to settle Plaintiffs’ claims for
$45,000 payment and the rebuilding of the motorhome, and the subsequent withdrawal of
the offer demonstrates bad intent. Four Winds presents an alternative version of the facts
concerning the settlement negotiations, but ultimately claim that Plaintiffs’ allegations
about the unsuccessful settlement negotiations undermine their argument for punitive
damages because it demonstrates that Four Winds made efforts to work with Plaintiffs
and resolve their claims. Evidence of the settlement negotiations does not demonstrate the
bad intent necessary to present a claim for punitive damages.
Finally, Plaintiffs argue that, “[p]erhaps the most significant evidence of the
Defendant’s bad state of mind is its active attempts to prevent the Plaintiffs from
obtaining information and lack of cooperation regarding the problems with the coach.”
(Dkt. 102 at 15.) This alleged bad act concerns an email message that Four Winds
Customer Service Representative Mark Stanley sent to Blue Dog RV employee Monica
MEMORANDUM DECISION AND ORDER - 23

Yurick. In the email, Ms. Yurick is told that she is “not supposed to share information
with the owner of the coach.” (Dep. Of Monica Yurick, 75:21-76:2, Dkt. 103.) During a
discussion that took place after the email, Ms. Yurick was told that the reason for the
instruction was that it was confidential information and that is was strictly between the
dealer and the factory. In response, Four Winds represents that confidentiality between
customer service representatives and dealers is not unusual in the motorhome (or any
other automobile) manufacturing industry and that Plaintiffs have failed to present any
evidence that the instruction given to Ms. Yurick deviated from industry practice. Given
this lack of evidence, the email in itself does not necessarily constitute a bad act or
evidence of bad intent.
Plaintiffs seeking punitive damages must prove their claim by clear and convincing
evidence. Idaho Code § 6-1604(1). This requires “[e]vidence indicating that the thing to
be proved is highly probable or reasonably certain.’” In re Adoption of Doe, 141 P.3d
1057, 1060 (Idaho 2006) (quoting Black’s Law Dictionary 577 (7th ed. 1999)) (alteration
in original). The Court finds that Plaintiffs have not demonstrated a reasonable likelihood
that they could make a showing at trial–through clear and convincing evidence–that Four
Winds (or its employees) acted with the bad intent necessary to sustain a claim for
punitive damages. See Idaho Code § 6-1604 (“The court shall allow the motion to amend
the pleadings if, after weighing the evidence presented, the court concludes that, the
moving party has established at such hearing a reasonable likelihood of proving facts at
trial sufficient to support an award of punitive damages.”) Plaintiffs’ motion to amend
MEMORANDUM DECISION AND ORDER - 24

will therefore be denied.
4.

Plaintiffs’ Motion In Limine
Plaintiffs have filed what they style a motion in limine. (Dkt. 118.) The document

is one page, consisting of seven lines, and moves the Court “to exclude the opinions and
testimony of the Defendant’s expert witnesses, James J. Keough, Douglas Lown, and
James Crosley.” (Pl.’s Mot. In Lim., Dkt. 118.) The motion then states that “Plaintiffs
reserve the right to make specific objections and present oral argument at the time any
objections are made to testimony or opinions that are presented at trial.” (Id.)
The Local Rules require “[e]ach motion, other than a routine or uncontested
matter, [to be] accompanied by a separate brief . . . containing all of the reasons and
points and authorities relied upon by the moving party.” Dist. Idaho Loc. Civ. R.
7.1(b)(1). At the hearing on the parties’ motions, Plaintiffs stated that they intended the
‘motion’ to be a “reservation of their right to object.” The Court is aware of no such
requirement. Based on Plaintiffs’ failure to file a memorandum of points and authorities
in support of their motion, the motion will be denied without prejudice. If Plaintiffs have
objections to Four Winds’ expert witnesses, they may raise those objections at the time of
trial.
5.

Four Winds’ Motion to Exclude Hearsay Statements
During her deposition, Plaintiff Marcia Parker testified about an incident where the

motorhome would not start and she called a mechanic about the problem. According to
Ms. Parker, the unidentified mechanic warned her not to try to jump-start the motorhome
MEMORANDUM DECISION AND ORDER - 25

because the batteries could explode if she did so. Specifically, Ms. Parker testified that:
“he said, don’t go near the coach. Don’t try to start the coach. Don’t jump the coach. He
said you could risk explosion with the batteries.” (Dep. Of Marcia Parker at 108, Dkt.
121-1.) Four Winds contends that this testimony is hearsay and should be excluded at trial
under Fed. R. Evid. 802.
Plaintiffs argue that the motion is premature, stating that “[i]f the Defendant
wishes to make a hearsay objection to live testimony presented at trial, it should make
that motion at the time of the testimony.” (Dkt. 128 at 2.) Plaintiffs cite no authority for
the proposition that hearsay statements cannot be the subject of a motion in limine.
Plaintiffs do, however, assert that the mechanic can be identified and may be included in
the witness list, which is due February 17, 2012.
Four Winds’ motion will be denied on this issue at this time. The Court will
address objections, including hearsay, at the time of trial. However, counsel for both
parties should proceed with caution during opening statements concerning evidence that
may not be found admissible during trial.
ORDER
Based on the foregoing, the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that:
1.

Four Winds’ Motion in Limine to Exclude Various Inadmissible Evidence,

(Dkt. 88), is GRANTED in part and DENIED in part as follows:
a.

Concerning other incidents, the Court will not restrict Plaintiffs’

MEMORANDUM DECISION AND ORDER - 26

direct examination of Mr. Tompkins regarding his prior experience
as foundation for establishing his expert credentials. Plaintiffs will be
required, however, to demonstrate substantial similarity through an
offer of proof outside the presence of the jury before eliciting
testimony or other evidence of prior incidents in which a
motorhome’s slideout extended unexpectedly.
b.

Plaintiffs are prohibited from introducing any evidence of or making
references to Ms. Miller’s mother’s death or Ms. Miller’s inability to
drive the motorhome to attend the funeral for her mother.

c.

Plaintiffs may not offer Paul or Steve Marton as expert witnesses.
The extent to which either Marton may give lay opinion testimony
under Fed. R. Evid. 701 will be addressed at trial.

d.

Four Winds’ motion is denied in all other respects in accordance
with the above memorandum.

2.

Four Winds’ Motion in Limine to Exclude Testimony of Larry Tompkins,

(Dkt. 89), is DENIED in accordance with the above memorandum.
3.

Plaintiffs’ Motion for Leave to Amend Complaint to Include Claim for

Punitive Damages, (Dkt. 101), is DENIED.
4.

Plaintiffs’ Motion in Limine, (Dkt. 118), is DENIED.

5.

Four Winds’ Motion in Limine to Exclude Mechanic Hearsay Statements,

(Dkt. 119), is DENIED in accordance with the above memorandum.
MEMORANDUM DECISION AND ORDER - 27

IT IS FURTHER ORDERED that the parties shall advise opposing counsel as well
as the Court in advance of when they anticipate evidentiary issues to arise during trial so
that, if necessary, the Court can consider such issues outside the presence of the jury. The
parties are instructed to jointly communicate with the Court’s law clerk throughout the
day and at the end of each day of trial regarding upcoming issues.
DATED: February 13, 2012

Honorable Candy W. Dale
Chief United States Magistrate Judge

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