Free Motion in Limine - District Court of Arizona - Arizona

1 Negatu Molla (Bar No. 006254)

David W. Williams (Bar No. 022764)

2 BOWMAN AND BROOKE LLP Suite 1600, Phoenix Plaza
3 2901 North Central Avenue

Phoenix, Arizona 85012-2761
4 (602) 643-2300

Attorneys for Defendant Workhorse Custom Chassis
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UNITED STATES DISTRICT COURT
DISTRICT OF PHOENIX

LANE SENNETT,
Plaintiff,
v.

No. CV04 0161 PHX ROS
DEFENDANT WORKHORSE CUSTOM CHASSIS, LLC'S MOTION TO PRECLUDE VALUATION OPINIONS OF WILLIAM TRIMMELL
(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.

16 Workhorse Custom Chassis, LLC ("Workhorse"), by undersigned counsel

17 pursuant to Fed. R. Evid. 703, hereby moves to exclude any valuation opinions

18 from Plaintiffs expert, William Trimmell, on the value of the motor home in its
19 allegedly defective condition. Workhorse's position is more fully set forth in the
20 accompanying memorandum of points and authority.
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MEMORANDUM OF POINTS AND AUTHORITY

22 Plaintiff will call William Trimmell to support her claim for diminution in value
23 damages at triaL. However, Mr. Trimmell's opinions are inadmissible because they

24 are speculative and unreliable and wil not aid the jury in awarding any damages
25 for diminution in value.
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The United States Supreme Court has charged trial judges with the
responsibility of acting as gatekeepers to exclude unreliable testimony. Daubert v.

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Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993). This gatekeeper

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function applies to all expert testimony, not just testimony based in science.
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Rule 702 of the Federal

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Rules of Evidence was recently amended to make explicit what the Court in
Daubert held was implicit in the Rule's prior iteration:

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If 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 education, may testify thereto in the form of an opinion or otherwise, if (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. 702.1

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The Daubert court was primarily concerned with the reliability and the
relevance of the expert's opinions under Rule 702. Supra. In applying Daubert,

first, the Court must determine whether Mr. Trimmell's proposed testimony
pertains to scientific, technical or other specialized knowledge, by applying the

factors set forth in Daubert. Id. at 589-90.2 This requires that the Court exclude

testimony and opinions based upon "subjective believe or unsupported
conjecture." Id. at 590. Second, the Court must consider whether Mr. Trimmell's

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For purposes of this motion, Defendant does not challenge Mr. Trimmells

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qualifications, but rather asserts that his methodology of valuing the motor home is unreliable and speculative.
2 "The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested---that is, whether the expert's theory

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can be challenged in some objective sense, or whether it is instead simply a
subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3)

the known or potential rate of error of the technique or theory when applied; (4) the
existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community." See Advisory Committee Notes of the 2000 Amendments to Fed. R. Evid. 702.

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testimony wil assist the jury in understanding the evidence, which is basically a
relevance inquiry. Id. at 591-593.

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Mr. Trimmell's valuation opinions are not reliable because they are
unsupported speculation (which Mr. Trimmell agrees are speculative) that have
not been objectively verified and fails to meet the Daubert reliability test. The first
Daubert factor is whether the expert's technique or methodology can be tested or
is simply a subjective and conclusory approach that cannot be objectively verified.

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8 Id. at 589.
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In his report, Mr. Trimmell claims that the alleged defects in the motor home

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have caused it have lost up to $43,925.00 of its value. See Trimmell Appraisal

Report, attached as Exhibit 1. He estimated that the motor home had a present
day value with its alleged defects of $56,475.00, and a value without the defects
of $100,400.00 (what he refers to as the top retail value). Exhibit 1.

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Mr. Trimmell was deposed on May 26, 2005. During his deposition, Mr.
Trimmell explained that he arrives at the loss of value figure by subtracting the
value of the motor home with its alleged defects stil present ($56,475) from the
value of the vehicle without the defects ($100,400). See Trimmell Deposition, p.

99: 11-1 01 :24, attached as Exhibit 2. Mr. Trimmell also stated that $56,475.00

value of the motor home with its alleged defects was arrived at by guessing that
the motor home would be worth about 75 percent of its wholesale value. Exhibit
2, pp. 101 :8-102:9.

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Mr. Trimmell's estimate of the alleged loss in value of the motor home is

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nothing but speculative guessing. He never consulted with a wholesaler to
determine if they would offer Plaintiff 75 percent of the wholesale value for the

motor home. Exhibit 2, p. 102:12-21. Further, Mr. Trimmell never personally
inspected the motor home and he has never even seen a photograph of the motor

home. Exhibit 2, pp. 40:2-16, 92:8-11. Mr. Trimmell also had no idea whether
any of the alleged defects with the chassis are still present today. Id.at 92:12-

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95:10. Mr. Trimmell also never did any research on what kinds of comparable

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motor homes would sell for if they had allegedly similar defects. Id. at 106:7107:3. Essentially, Mr. Trimmell admitted in his deposition that "You have to
speculate or you have to give your best professional on what you think a

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wholesaler would pay for a certain coach." Id. at 106:15-17.
As further evidence of the speculative nature of Mr. Trimmell's "market

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value" assessment, many courts have rejected Mr. Trimmell's methodology as a
reliable method of determining damages in a breach of warranty action. The most
objective method used to determine the difference between the value of goods as

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warranted and the value of the goods as accepted is the cost to repair the goods

to bring them back to their original value as opposed to Mr. Trimmell's "market
value" assessment of damages. Tarter v. MonArk Boat Co., 430 F. Supp. 1290,

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1294 (E.D. Mo. 1977) (finding that the cost to repair the defective boat was a
better measure of damages than the plaintiffs testimony about the alleged loss of
value). As one respected treatise on warranty law has stated:

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Perhaps the best measure of the diminution in value caused by breach of warranty is the cost of repairing the goods to bring them back to their original value. The advantage of this measure for the
courts have emphasized that repair cost is a better measure of the buyer's primary economic loss than a more amorphous comparison of market values.

buyer is its objective nature for purposes of proof. A number of

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Barkley Clark & Christopher Smith, l-e Law oLProduct Warranties ~ 7.28
(Warren, Gorham & Lamont 1984). Further, the majority of courts now accept the
cost of repair methodology as the accepted method of determining damages: One
treatise has stated:

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The cost of repair to bring the goods to their warranted condition has

general damages under Section 2-714. While a few courts have erroneously rejected repair costs in favor of measuring damages
overwhelming judicial consensus is that repair costs are presumptive

been widely recognized by the courts as a valid measure of a buyer's

under the amorphous "value" standards of subsection (2), the

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evidence of the difference between the value of the goods as
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accepted and their value as warranted. . . The ease with which

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repair costs can be proved at trial has caused the courts to regard them as preferable evidence of damages to the more uncertain evidence of values. It may often be diffcult for a buyer to prove
value, both as to the goods as accepted and as warranted,

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particularly where the goods have no market price.

Ron Ryden Anderson, Damaççes Under the Uniform Commercial Coqe ~ 10:6
Updated 2005)

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Mr. Trimmell's opinion and "market value" assessment of damages is based

simply upon his guesswork. He did no independent research to ascertain what
the allegedly defective value of the motor home would be. He did no physical

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inspection of the motor home. He has no idea if there are any defects still present
in the chassis. His methodology (or lack there of) is unreliable and fails to meet

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the Daubert test of admissibility. Browder v. General Motors Corp., 5 F.Supp. 2d
1267, 1283 (M.D. Ala. 1998). Because Mr. Trimmell's opinions about the value of
the motor home in its allegedly defective condition are too speculative, they fail to

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meet the requirements of admissibilty under Rule 703, and should be precluded.
RESPECTFULLY SUBMITTED this ~5~day of August, 2006.
BOWMAN AND BROOKE LLP

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By: Isl David W. Willams
Negatu Molla

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2901 North Central Avenue

David W. Willams Suite 1600, Phoenix Plaza

Attorneys for Defendant

Phoenix, Arizona 85012-2761

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CERTIFICATE OF SERVICE

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I hereby certify that on the.J~day of August, 2006 I caused the attached
document to be electronically transmitted to the Clerk's Offce using the CMIECF

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System for filing and transmittal of a Notice of Electronic Filing to the following
CMIECF registrants:
KROHN & MOSS, L TD

6 Jennifer Basola

7 111 W Monroe, Suite 711

Phoenix, AZ 85003 8 Attorney for Plaintiff
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sl Judv Kaelin

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