Free Motion in Limine - District Court of Arizona - Arizona

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2901 North Central Avenue

Suite 1600, Phoenix Plaza

Negatu Molla (Bar No. 006254) David W. Williams (Bar No. 022764) BOWMAN AND BROOKE LLP

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Phoenix, Arizona 85012-2761

(602) 643-2300 Attorneys for Defendant Workhorse Custom Chassis

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UNITED STATES DISTRICT COURT
DISTRICT OF PHOENIX

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LANE SENNETT,
Plaintiff,
v.

No. CV04 0161 PHX ROS
DEFENDANT WORKHORSE CUSTOM CHASSIS, LLC'S MOTION TO EXCLUDE VALUATION TESTIMONY BY PLAINTIFF
(Assigned to Honorable Roslyn O. Silver)

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FLEETWOOD MOTOR HOMES OF CALIFORNIA, INC. and WORKHORSE CUSTOM CHASSIS; INC.,

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Defendants.

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Defendant Workhorse Custom Chassis ("Workhorse") moves in limine for an
order excluding any opinions or testimony from Plaintiff or any other lay witness, not

properly qualified, on the issue of the value of the subject motor home/chassis due

to any alleged defects. For the reasons set forth below, Workhorse requests that
the Court grant its motion in limine.
I.

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INTRODUCTION

Plaintiff has disclosed that she wil offer opinions about the supposed loss in
value of the subject motor home because of its alleged defects. Plaintiff is seeking
damages for the alleged loss of value for the motor home due to the alleged defects,

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in other words, the diminished value of the vehicle. In order to determine what the
diminished value is, Plaintiff takes the value she paid for the motor home, and tries
to establish a value for the motor home in its allegedly defective condition, and she
subtracts the value for the "defective motor home" from the purchase price to arrive at the loss of value for the motor home. Plaintiff's opinion about the alleged value of

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her motor home due to any alleged defects is nothing more than speculative
guessing that is not suffcient for a jury to base an award of damages upon. Further,

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Plaintiffs testimony about the value of the motor home in its defective condition is
inadmissible under Rules 701 and 702, Federal Rules of Evidence.
II.

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PLAINTIFF HAS NO FOUNDATION TO RENDER ANY OPINIONS ABOUT THE
ALLEGED DIM ISH

ED VALUE OF THE SUBJECT VEHICLE.

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When seeking damages in a contract action, the plaintiff bears the burden of

proving his damages with reasonable certainty. Gilmore v. Cohen, 95 Ariz. 34, 36,
386 P.2d 81, 82 (1963). "Although 'reasonable certainty' does not require 'certainty

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in amount,' 'the plaintiffs evidence must provide some basis for estimating his
loss... (T)he evidence must make an 'approximately accurate estimate possible'"

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Walter v. Simmons, 169 Ariz. 229, 221,818 P.2d 214,236 (App. 1991) (quoting

Gilmore, supra.); "An award of damages cannot be based on conjecture or
speculation: (T)he plaintiff in every case should supply some reasonable basis for
computing the amount of damage and must do so with such precision as, from the
nature of his claim and the available evidence, is possible." Walter, 169 Ariz. at 236,

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818 P.2d at 221; See also Nelson v. Cail, 120 Ariz. 64, 67, 583 P.2d 1384, 1387;
(App. 1978) ("there must still be a reasonable basis in the evidence for the trier of
fact to fix computation when a dollar loss is claimed").

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In order to recover diminution in value damages \ Plaintiff must prove by a
reasonable approximation both the value of the vehicle as warranted and the value

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1 "Diminution in value damages" is recognized as the standard measure of damages at common

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law in breach of warranty actions. Schatz DistributinQ Co., Inc. v. Olivetti Corp. of America, 7 Kan.App.2d 676, 647 P.2d 820 (Kan. App. 1982) (holding "diminution in value damages" is a

common law measure of damages for a breach of warranty claim). It is also set forth in the
Nevada Uniform Commercial Code ("U.C.C."), N.R.S. § 104.2714. Plaintiff may argue that the U.C.C. applies in breach of warranty actions against a remote manufacturer. However, no Nevada Court has applied the U.C.C. to cases involving remote manufacturers, and other states have expressly rejected the application. See Florv v. Silvercrest Industries, Inc., 129 Ariz. 574, 633 P.2d 383 (1981); PlaQens v. National RV HoldinQs Inc., 328 F.Supp.2d 1068 (D. Ariz. 2004) F.Supp.2d 1068 (D. Ariz. 2004) (holding that Arizona U.C.C. does not apply in a breach of written
warranty action under the Magnuson-Moss Act.)

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of the vehicle in its allegedly defective condition.2 One court has summarized
Plaintiffs burden as follows:

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The measure of damages for breach of warranty is the difference at
the time and place of acceptance between the value of the goods

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warranted, unless special circumstances show proximate damages of

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warranted (e.g., the purchase price). If a purchaser shows only the
their defective condition, then its claim fails.

recover breach of warranty damages (or to offset a seller's claim for the purchase price) must show two figures: the value of the goods in their defective condition, and the value of the goods had they been as

accepted and the value they would have had if they had been as a different amount. Under this language, a purchaser seeking to

purchase price and fails to present evidence of the goods' value in

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Dixon Dairv Farms, Inc. v. ConaQra Feed Co., 245 Ga.App. 836, 837, 538 S.E.2d
897,898-99 (Ga. App. 2000).

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Plaintiff has disclosed that she intends to testify at trial that the motor home
has lost as much as 50 percent of its "market" value as compared to the purchase

price. See Plaintiffs Initial Disclosure, attached as Exhibit 1. However, during her

deposition, Plaintiff was specifically asked what she would testify the diminished
value of the motor home was. She stated, "I'm not an expert. I can't say. I haven't

consulted any---anyone that could give me this number." See Deposition of Lane
Sennett, p. 141 :11-12, attached as Exhibit 2. Finally, Plaintiff stated that she felt the

motor home was "worth scrap" value. See Exhibit 2, p. 142:5. Additionally, she

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testified that this was diminished value of "scrap value" was based upon her

personal experience with the motor home, and not based on any outside sources.
Exhibit 2, p. 142:16-18.

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The only basis Plaintiff had for this opinion as to the motor home's diminished

value was her experience with this particular motor home. She has never disclosed
2 Workhorse contends that the proper measure of damages is not the "market valuation method"

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argued by Plaintiff, but instead the cost to repair the subject chassis and bring it into conformity

with the limited warranty. See Defendant's Trial Memorandum re Various Issues, p. 3:10-4:14.
To the extent the Court believes that Plaintiff may show damages by arguing that the "market value" of the motor home has decreased, Workhorse contends that Plaintiff is not competent or
qualified to offer such testimony.

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any other basis for arriving at her opinion that the motor home is worth "scrap

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value." Plaintiff is simply guessing as to what the loss of value is in the motor home
in order to establish his damages. She may be able to prove the value of the
vehicle without any defects (the motor home's purchase price), but she has no way

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of establishing a reasonable approximate value for the vehicle in its allegedly

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defective condition, which is necessary to prove diminution in value damages.
Dixon Dairv Farms. Inc., 245 Ga.App. at 837, 538 S.E.2d at 898-99. Plaintiffs

speculative opinion about what the value of the motor home is in its current
condition does not meet the minimal evidentiary threshold to aid the jury in
determining what the dollar loss is.
A. Plaintiff's Valuation Opinion Is Speculative And Without Any

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Foundation; Therefore, It is Inadmissible.

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13 Courts in other jurisdictions have excluded the opinions of a plaintiff in a
14 breach of warranty case where they had no basis for their opinions, and entered
15 judgment in favor of the manufacturer for the plaintiffs failure to prove damages. In

16 Kim v. Mercedes-Benz USA, 818 N.E.2d 713 (IlL. App. 2004), the Illinois appellate

17 court upheld the exclusion of testimony from that plaintiff with respect to his

18 subjective assessment of his vehicle's value when there was no proper basis or
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for computing damages. Id. at 724. In Kim, the plaintiff sought to give testimony
about the diminished value of the vehicle based upon his subjective beliefs and the

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vehicle's service history. Id. The trial court granted the defendant's motion to
exclude any testimony on the issue of the plaintiff's subjective belief of the vehicle's
value. In upholding the trial court's decision, the appellate court stated:

Although plaintiff demonstrated personal knowledge of the value of the

vehicle as new, he nevertheless failed to provide any testimony or other evidence demonstrating personal knowledge of the value of the

establish the basis of liis knowledge. Accordingly, plaintiff has not

ML 320 in its allegedly defective state. Furtlier, plaintiff failed to

made an adequate showing of the factors on which he bases his

proposed testimony for the diminished value of the ML 320. No proper
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foundation was laid as to the diminished value of plaintiffs vehicle and, therefore, plaintiffs proposed testimony was excluded properly.

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Id. at 724. Because the Kim plaintiff could not establish the diminished value of the
vehicle, the trial court granted a directed verdict in favor of the manufacturer for the
plaintiff's failure to prove damages. Id.

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Similarly, in Monroe v. Hvundai Motor America, 606 S.E.2d 894 (Ga.App.
2004), the Georgia appellate court upheld the dismissal of a breach of warranty

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action in favor of the manufacturer on summary judgment where the plaintiff was

unable to prove damages for diminished value. In Monroe, the plaintiff sought to
testify about the vehicle's diminished value based upon research of the car market

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and experience buying and sellng vehicles. The trial court did not consider this
evidence in response to the manufacturer's motion for summary judgment because the plaintiff lacked any basis for his opinions. In upholding the trial court's dismissal

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the Georgia appellate court stated:
(E)ven though Monroe based his opinion on past purchases and had
correctly points out that Monroe "does not testify that any of these past vehicle purchases included a purchase of a venicle with the purported defects, and what his 'research' involved" and that Monroe's affidavit

researched the car market before purchasing the Sonata, HMA

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"addresses the usefulness of the vehicle to him," rather than its fair market value. . . the trial court did not abuse its discretion in striking Monroe's testimony concerning the value of the Sonata in its allegedly
defective condition at the time of purchase (internal citations omitted).
Id. at 897.

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Like the plaintiffs in above cited cases, Plaintiff intends to offer her own
subjective opinion as to the vehicle's value with no basis for that opinion. She
simply is guessing what the motor home may be worth in its allegedly defective

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condition without any reasonable basis to support it. Since Plaintiff is unable to
substantiate her own testimony, it is inadmissible and cannot support a jury award
for diminution in value damages.

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B.

F.R.E. 701 and 702.
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Plaintiff's Valuation Opinion Testimony Is Inadmissible Under

Further, Plaintiffs valuation is inadmissible under F.R.E. 701 and 702.
Plaintiff candidly admitted in her deposition that she was not an expert in valuation.

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Therefore, her testimony would be inadmissible under Rule 702, which requires that
a witness be qualified as an expert in order to offer testimony based upon scientific,

technical or some other type of knowledge. Further, her testimony is inadmissible
under Rule 701.

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Under Rule 701, if she is not testifying as an expert, she may only offer

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opinion testimony if her testimony is (a) rationally based on her perceptions; (b)
helpful to a clear understanding of her testimony or determination of a fact at issue;
and (c) is not based on scientific, technical or other specialized knowledge within the

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scope of Rule 702. In this case, establishing the value of the motor home in its
allegedly defective condition is beyond the scope of the average lay witness, and is
based upon scientific and technical knowledge in the area of automotive mechanics
and vehicle appraisaL. Additionally, her testimony would not be based upon her own

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perception of the motor home. She admitted in her deposition that she did not
consult any outside sources to establish the value of the motor home in its allegedly

defective condition, and simply guessed that the motor home was worth scrap
value. Therefore, her opinion testimony about the value of the motor home is

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inadmissible under Rule 701.
IIi.

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CONCLUSION

Plaintiff's subjective testimony about what she feels the value of the subject
motor home is in its allegedly defective condition is without foundation or support. It

is inadmissible unfounded opinion testimony that will not aid a jury in determining
what the alleged diminished value of the motor home is. Therefore, Workhorse

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requests that Plaintiff or any other lay witness not be allowed to offer such testimony
at triaL.

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RESPECTFULLY SUBMITTED this ~5-M day of August, 2006.
BOWMAN AND BROOKE LLP

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By: /s/ David W. Willams

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2901 North Central Avenue

David W. Wiliams Suite 1600, Phoenix Plaza

Negatu Molla

Attorneys for Defendant Workhorse Custom Chassis

Phoenix, Arizona 85012-2761

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CERTIFICATE OF SERVICE

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I hereby certify that on the t1!f.f day of August, 2006 I caused the attached
document to be electronically transmitted to the Clerk's Offce using the CM/ECF

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System for filing and transmittal of a Notice of Electronic Filing to the following
CM/ECF registrants:

6 Jennifer Basola

7 KROHN & MOSS, L TD
8 Phoenix, AZ 85003
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111 W Monroe, Suite 711

Attorney for Plaintiff

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s/ Judy Kaelin
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