Free Trial Brief - District Court of Arizona - Arizona

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STRUCKMEYER & WILSON 910 E. Osborn Rd. Phoenix, AZ 85014 PHONE: (602) 248-9222 FAX: (602) 263-0464 Garvey M. Biggers, 9932 [email protected] S. Lee White, 17551 [email protected] Attorneys for Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Palma Baca Urrutia; Patricia Urrutia-Baca; Luis Javier Urrutia-Baca; Elizabeth UrrutiaBaca; Javier Arturo Urrutia-Arrieta; and Gloria Estela Sandate, ) ) ) ) ) Plaintiffs, ) ) vs. ) ) Darrell Lee Ekdahl and Jane Doe Ekdahl, ) husband and wife; George Vanden Bossche ) and Karolyn Vanden Bossche, husband and ) wife; and Vandy's Transportation, Inc., a ) California corporation, ) ) Defendants. ) ____________________________________) I. NO. CV-03-1990-PHX-PGR DEFENDANTS' TRIAL BRIEF

(Assigned to the Honorable Paul G. Rosenblatt)

SIGNIFICANT DISPUTED ISSUES OF FACT The following are what defendants consider to be significant disputed facts in this case: 1. The speed at which the Ekdahl vehicle was traveling at time of contact.

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2.
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The speed at which the Urrutia vehicle was traveling at time of contact.

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3.

The time it would have taken the Urrutia vehicle to have reached the speed it was

traveling at initial contact.

4.

Defendant Ekdahl was not in a state of fatigue/sleepy nor was his attention

otherwise diminished just prior to the accident.

5. diminished.

Jose Luis Urrutia-Arrieta was fatigued and/or his attention was otherwise

6. diminished.

Javier Arturo Sandate-Urrutia was fatigued or his attention was otherwise

7.

The driver of the Urrutia vehicle created an unsafe condition or unexpected

hazard by driving on or entering Interstate 10 at no more than 30 miles per hour.

8.

Defendant Ekdahl was not in violation of the Federal Motor Carrier Safety

Regulations regarding the hours of service and prohibitions against driving while fatigued.

9.

Defendant Ekdahl did not exceed the weekly limits on hours of driving for

commercial drivers at or near the time of the accident.

10.

Whether a violation of FMCSR, if found, was a cause of the accident.

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11.

Defendant Ekdahl was traveling at a lawful speed and within his lane of travel

leading up to the accident.

12.

At the time Mr. Ekdahl perceived the Urrutia vehicle he thought he was in

immediate peril.

13.

Mr. Ekdahl hit his brakes, honked his horn and made a slight maneuver to veer

left all within 3 seconds with no effect upon the Urrutia vehicle prior to making contact.

14.

Mr. Ekdahl remained in immediate peril in spite of his reaction to the imminent

peril caused by the Urrutia vehicle merging into his lane from the shoulder of the road.

15.

Insufficient time existed for Mr. Ekdahl (3 seconds) to perceive the peril, react by

either braking his vehicle to a stop or to change lanes in a safe manner to avoid the accident.

16.

Defendant Ekdahl was faced with a "sudden emergency".

17.

Whether the sudden emergency created when the Urrutia vehicle entered I-10 did

not allow Defendant Ekdahl sufficient opportunity to evaluate the reasonableness of making a lane change.

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Whether the driver of the Urrutia vehicle had the last best chance to avoid the

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19.

Defendant Ekdahl's report to the investigating officer about how the accident

occurred was honestly communicated.

20. to his left.

Whether Defendant Ekdahl perceived the presence of another vehicle in the lane

21.

Defendant Ekdahl did everything a reasonable and prudent person in his situation

could do to avoid the accident.

22.

Whether there was sufficient time to perceive and react to the Urrutia vehicle for

Defendant Ekdahl to avoid the accident.

23.

The point at which the Urrutia vehicle became visible.

24.

Whether the Urrutia vehicle ever had its lights off.

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The point at which the headlights of the Urrutia vehicle were turned on.

26.

The direction the headlights faced when turned on.

27.

Whether Jose Urrutia and/or Javier had so overloaded the Urrutia vehicle that he

could not accelerate quickly enough to avoid the accident.

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28.

Whether the loaded condition of the Urrutia vehicle made it unlikely for the

vehicle to have accelerated to the pre-impact speed that the Plaintiffs contend it was traveling, within the time the sequence that occurred.

29.

Whether Jose Urrutia saw the Ekdahl vehicle, recognized the danger, and

assumed the risk that Jose Urrutia could not accelerate quickly enough, or Defendant Ekdahl could slow down enough, to avoid the accident.

30.

Whether Palma Baca Urrutia is the wife of the deceased Jose Luis Urrutia-Arrieta.

31. Arrrieta.

Whether Patricia Urrutia-Baca is the daughter of the deceased Jose Luis Urrutia

32. Arrieta.

Whether Luis Javier Urrutia-Baca is the son of the deceased Jose Luis Urrutia-

33. Arrieta.

Whether Elizabeth Urrutia-Baca is the daughter of the deceased Jose Luis Urrutia-

34.

Whether Javier Arturo Urrutia-Arrieta is the natural father of the deceased minor

Javier Arturo Sandate-Urrutia.

35.

Whether Gloria Estela Sandate is the natural mother of the deceased minor Javier

Arturo Sandate-Urrutia.

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36.

Whether Ekdahl acted with an "evil mind" as enumerated in the Revised Arizona

Jury Instructions.

37.

Whether Vandy's Transportation acted with an "evil mind".

38.

The damages suffered by each claimant as measured by the Arizona Wrongful

Death Statute not including any monetary loss in the form of wages or income except out-ofpocket expenses for funeral and burial costs. The damages in this case are strictly limited to the loss of love and affection, grief, sorrow, etc. as enumerated in the Wrongful Death Statute.

II.

SIGNIFICANT DISPUTED ISSUES OF LAW The following are what defendants consider to be significant disputed issues of law in

this case: 1. Negligence of Urrutia · Whether the speed of the Urrutia vehicle was less than reasonable and prudent; Whether the Urrutia vehicle properly signaled it's intention to merge onto the Interstate Highway; · Whether the Urrutia vehicle created a sudden, unexpected encounter with a danger; · · · Whether the Urrutias failed to yield the right of way; Whether the Urrutias were fatigued and inattentive; Whether the Urrutias complied with all of the equipment requirements including reflectors, lighted lamps, or mirrors;

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·

2.
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Negligence of Ekdahl.

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· · · · ·

Whether Ekdahl owed Urrutias a duty of reasonable care under the circumstances; Whether Ekdahl breached the duty of reasonable care; Whether Ekdahl's breach proximately caused the death of the deceased; Plaintiffs' damages, and Whether Plaintiffs are entitled to punitive damages. Negligence per se of Urrutia.

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3.

Whether the driver of the Urrutia vehicle violated any or all of the following Arizona Revised Statutes with pertinent definition: · · A.R.S. §28-701E (speed less than reasonable or prudent); A.R.S. §28-704(A) (speed that impedes or blocks normal and reasonable movement of vehicles on the roadway); · A.R.S. §28-721(B) (speed less than normal shall drive as close to the right hand curb or edge of roadway as is practicable);

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·
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A.R.S. §28-754(C) (A person should not stop or suddenly decrease speed.) Worthington vs. Funk, 7 Ariz.App. 595, 442 P2d 153 (1968); Stearman v. Miranda 97 Ariz. 55; 396 p2d 622 (1964);

· · ·

A.R.S. §28-755 A hand or arm signal or signal device required; A.R.S. §28-771(C) Vehicle entering freeway shall yield right of way; A.R.S. §28-101 "right-of-way" movement of traffic on a highway means the privilege of the immediate use of the highway;

·

A.R.S. §28-101(17) "Drive" means to operate or be in actual physical control of a motor vehicle.

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·

A.R.S. §28-101(18) "Driver" means a person who drives or is in actual physical control of a vehicle.

·

A.R.S. §28-101(51) "Street" or "highway" means the entire width between the boundary lines of every way if a part of the way is open to the use of the public

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for purposes of vehicular travel.
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·

A.R.S. §28-773(A) Driver shall yield right-of-way to vehicles approaching so closely as to constitute an immediate hazard;

·

A.R.S. §28-774 Driver about to enter highway shall yield right-of-way to all closely approaching vehicles on highway;

· · · · ·

A.R.S. §28-921(A) Applicability of equipment requirements; A.R.S. §28-922 Lighted lamps required; A.R.S. §28-925(A) Tail lamps plainly visible from 500 feet; A.R.S. §28-929(1) Additional lighting required on certain vehicles; A.R.S. §28-929(2)(a)(b)(c)(d) Other equipment required. A.R.S. §28-939(a)(1)(2) A motor vehicle shall be equipped with certain rear lights and signals.

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·

·

A.R.S. §28-101(54) "Truck" means a motor vehicle designed or used primarily for the carrying of property other than the effects of the driver or passengers and includes a motor vehicle to which has been added a box, a platform or other equipment for such carrying.

· · ·

A.R.S. §28-933(A) Reflector visibility requirement; A.R.S. §28-933(B) Lamp visibility; A.R.S. §28-939(A)(2) Signal lamps required; and

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· 4. ·

A.R.S. §28-956 Mirrors to reflect to driver 250 feet with unobstructed view. Contributory negligence by Jose Luis Urrutia-Arrieta. Assuming Jose Luis Urrutia-Arrieta was driving, whether pulling onto the road from the shoulder in front of fast moving traffic without ensuring adequate time to

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merge safely was comparative fault that proximately caused or contributed to the
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death of Jose Luis Urrutia-Arrieta; and
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·

Assuming Jose Luis Urrutia-Arrieta loaded or helped to load the Urrutia vehicle, whether exceeding the safe towing capacity of the Urrutia vehicle was comparative fault that proximately caused or contributed to the death of Jose Luis Urrutia-Arrieta.

5. ·

Contributory negligence by Javier Orturo Sandate-Urrutia. Assuming Javier Arturo Sandate-Urrutia was driving, whether pulling onto the road from the shoulder in front of fast moving traffic without ensuring adequate time to merge safely was comparative fault that proximately caused or contributed to the death of Javier Arturo Sandate-Urrutia; and

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·
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Assuming Javier Arturo Sandate-Urrutia loaded or helped to load the Urrutia vehicle, whether exceeding the safe towing capacity of the Urrutia vehicle was comparative fault that proximately caused or contributed to the death of Javier Arturo Sandate-Urrutia.

6. ·

Comparative fault by Jose Luis Urrutia-Arrieta. Assuming Jose Luis Urrutia-Arrieta was driving, whether pulling onto the road from the shoulder in front of fast moving traffic without ensuring adequate time to merge safely breached Jose Luis Urrutia-Arrieta's duty to Javier Arturo Sandate-

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Urrutia, proximately causing or contributing to Javier Arturo Sandate-Urrutia's death; and · Assuming Jose Luis Urrutia-Arrieta loaded or helped to load the Urrutia vehicle, whether exceeding the safe towing capacity of the Urrutia vehicle breached Jose

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Luis Urrutia-Arrieta's duty to Javier Arturo Sandate-Urrutia, proximately causing
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or contributing to Javier Arturo Sandate-Urrutia's death.
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7. ·

Comparative fault by Javier Arturo Sandate-Urrutia. Assuming Javier Arturo Sandate-Urrutia was driving, whether pulling onto the road from the shoulder in front of fast moving traffic without ensuring adequate time to merge safely breached Javier Arturo Sandate-Urrutia's duty to Jose Luis Urrutia-Arrieta, proximately causing or contributing to Jose Luis Urrutia-Arrieta's death; and · Assuming Javier Arturo Sandate-Urrutia loaded or helped to load the Urrutia vehicle, whether exceeding the safe towing capacity of the Urrutia vehicle breached Javier Arturo Sandate-Urrutia's duty to Jose Luis Urrutia-Arrieta,

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proximately causing or contributing to Jose Luis Urrutia-Arrieta's death.
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8.
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Assumption of risk by Jose Luis Urrutia-Arrieta. · Assuming Jose Luis Urrutia-Arrieta was driving, whether entering the roadway in front of fast moving traffic was an implied assumption of risk by Jose Luis Urrutia-Arrieta that an accident could occur with serious consequences.

9. ·

Assumption of risk by Javier Arturo Sandate-Urrutia. Assuming Javier Arturo Sandate-Urrutia was driving, whether entering the roadway in front of fast moving traffic was an implied assumption of risk by

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Javier Arturo Sandate-Urrutia that an accident could occur with serious consequences. 10. · Negligent supervision of Ekdahl by Vandy's. Whether Vandy's breached its duty to supervise Ekdahl to ensure his compliance with the FMCSR regarding fatigue and hours of service requirements (FMCSR

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§392.3, §395.3);
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·

Whether Vandy's breached its duty to ensure compliance with the FMCSR in regards to fatigue and the hours of service; and

·

Whether such breach was the proximate cause of Plaintiffs' damages.

III.

PROCEDURAL AND EVIDENTIARY ISSUES A. 1. Procedural Issues Plaintiff's Attorney Has Concurrent Conflict of Interest-E.R. 1.7(a)(2) E.R.1.7 Conflict of Interest: Current Clients reads as follows: (a) Except as provided in paragraph (b), a lawyer shall not represent a client

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if the representation involves a concurrent conflict of interest. A
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concurrent

conflict of interest exists if:
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1) The representation of one client will be directly adverse to another client;
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or
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2) There is a significant risk that the representation of one or more clients
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will be materially limited by the lawyers responsibilities to another client,
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a former client or a third person or by a personal interest of the lawyer.
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(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if each affected client gives informed consent, confirmed in writing and: 1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation of each affected client; 2) The representation is not prohibited by law; and 3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

In the comment section to the 2003 Amendment to E.R. 1.7 of Rule 42 of the Arizona Rules of the Supreme Court governing Rules of Professional Conduct at note 22 it reads in pertinent part as follows:

"on the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question... On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirement of paragraph (b) are met.

E.R. 1.8(g) Conflict of Interest: Current Clients Specific Rules in pertinent part reads as follows:

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(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients... unless each client gives informed consent, in writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims...and of the participation of each person in the settlement. Here, plaintiffs' counsel represents six separate plaintiffs. Four of the claimants allege to be statutory beneficiaries of Jose Urrutia (spouse and three children) while two separate plaintiffs claim to be statutory beneficiaries of Javier Sandate Urrutia (parents). It is alleged Jose was the driver and Javier was the passenger. Substantial and significant evidence exists in this case that the interest of Javier who was a mere passenger has claims and causes of action against Jose and his statutory beneficiaries or estate. Plaintiffs' counsel has retained experts in the case that were deprived of any adverse

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factual information related to the Department of Public Safety investigation and specific
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statements made by family members related to the sleep patterns, maintenance history of the
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vehicle and driving conduct of Jose Urrutia leading up to the subject accident. At first blush, it appeared to defense counsel that this was perhaps oversight or an attempt to keep certain retained experts "in the dark" on certain subjects. Upon further reflection and insight gathered through trial preparation it now appears obvious that plaintiff's attorney could not represent Jose's statutory beneficiaries by disclosing to the retained experts much of the negative and damaging information while simultaneously representing Javier. Thus, the significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client have arose during the course of this lawsuit.

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Moreover, beyond the responsibilities to his multiple clients, there exists an obvious conflict by reason of substantial discrepancy in the plaintiffs' experts' testimony, incompatibility in positions in relation to the opposing party (here Vandy's and Ekdahl) and the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. E.R. 1.8(g) has specific relevance because plaintiffs' lawyer who represents two or more

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clients has continually participated from the outset of this case until the present in the making of
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"aggregate" settlement demands of the claims. Plaintiffs' attorney has at all times represented all
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six plaintiffs as though they were "joint." But, in fact, the evidence shows that the statutory beneficiaries of Javier have a significant claim against Jose's statutory beneficiaries and/or Jose's estate which could have been and should have been established so that Javier's statutory beneficiaries could have brought a claim against any statutory beneficiary or the entity itself arising from this incident. The fact that plaintiffs' counsel has chosen to advise four individual claimants to not establish an estate on behalf of Jose and allow the statutory beneficiaries of Javier to incur all of the reduction in damages arising from the negligence of Jose clearly demonstrates the consequences of the obvious concurrent conflict that exists. One of plaintiffs' retained experts (Mr. Uttal) testified that if in fact the Urrutia vehicle

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was traveling at 25 miles per hour at or near the time of the accident that this would be an
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unreasonably dangerous situation. While it is defendants' position that Javier could have been
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partially at fault for some of his actions or inactions, it has been the contention of defendants that Jose (presumably the driver) was mostly at fault for causing this incident. The fault of Jose will reduce the net recovery, if any, of Javier's statutory beneficiaries. Instead of Javier's statutory beneficiaries getting a full recovery against both of the alleged primary tortfeasors, Javier's statutory beneficiaries will be relegated to recovering against only one party, if at all.

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The concurrent conflict of interest in this litigation should be addressed by the court. The prejudicial effect of these activities by plaintiffs' counsel has prejudiced everyone including the witnesses, defendants, and possibly even the jury from discerning the full truth of this case. 2. Plaintiffs Named Two Experts in the Same Field ­ One to Author a Report

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and One to Testify.
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Plaintiffs disclosed two trucking compliance regulation experts. Plaintiffs disclosed
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Charles Roush and Cecil Lane of the SALT institute. Charles Roush conducted all of the
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research, review of documents, analysis of records, and wrote the report. Mr. Lane simply read the report, scanned the materials that Mr. Roush relied upon and signed his name to the report. In fact, Cecil Lane has testified that the only research he did with regard to any input into the report and opinions was to do research with regard to the moon and the condition of the moon. Mr. Lane seeks to testify regarding opinions and research in a report that was not written by him. Rule 26 unquestionably requires an expert witness to prepare his own Rule 26 report. Trigon Insurance Co. v. United States, 204 F.R.D. 277 (2001). Preparation implies involvement other than perusing a report drafted by someone else and signing one's name at the bottom to signify agreement. Id.

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3.
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Need for Resolution of Expert Witness Fee Dispute Defendants have filed a motion contemporaneous with this Trial Brief. Defendants and

Harry Sink, Ph.D., an expert retained by defendants and deposed by the plaintiff in June 2005, attempted to resolve this issue amicably and without a motion. The concern defendants have at this juncture is that if this subject is not resolved completely prior to trial, collateral issues from both Gerald Krueger and Harry Sink could arise during direct and/or cross-examination of either witness by either side. This would be a subject that would divert the attention of the jurors away

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from the issues it should be deciding. In a nutshell, defendants' motion is summed up as follows: Plaintiffs noticed Harry Sink's deposition and agreed in advance to pay him for his time incurred in attending the deposition. Plaintiffs' counsel agreed to pay him at the conclusion of the deposition. As of this date, Harry Sink has not been paid one penny by plaintiffs' attorney.

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Defense counsel noticed and deposed plaintiffs' expert, Gerald Krueger. Defense counsel paid
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Gerald Krueger an hourly amount in excess of $1,000 for the time actually incurred taking the
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deposition. Defense counsel refused to pay Gerald Krueger for time he incurred by defense counsel in preparing for the deposition and for the time Mr. Krueger incurred answering questions propounded to him by plaintiffs' attorney. Otherwise, Gerald Krueger was paid in full for all time incurred by defense counsel. Nevertheless, Plaintiffs' attorney chose to hold Harry Sink hostage by refusing to pay him one penny until defense counsel paid Mr. Krueger $1,600.00. B. 1. Evidentiary Issues Liability Insurance of Vandy's Transportation. Any testimony regarding

evidence of liability insurance for Darrell Ekdahl or Vandy's Transportation should be
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precluded. Evidence that a person was or was not insured against liability is not admissible upon
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the issue of whether the person acted negligently or otherwise wrongfully. Federal Rules of
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Evidence, Rule 411. In this case, Vandy's Transportation has not denied ownership or control or that Darrell Ekdahl was acting in the course and scope of his employment with Vandy's Transportation. Therefore, any evidence of liability insurance on behalf of Vandy's Transportation, Inc. or Darrel Ekdahl serves no purpose but to prejudice the jury. Furthermore, evidence of the presence of

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liability insurance on behalf of Vandy's Transportation, Inc. and Darrell Ekdahl tends to induce the jurors to decide the merits of this case on improper grounds. 2. Evidence of two sets of skid marks. Any testimony by any lay, fact or expert

witness regarding a set of skid marks further north (west) of the skid marks attributed to Vandy's Transportation tractor/trailer should be precluded.

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The officers in this case testified that these skid marks were measured because they were
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in the area of the scene. However, the officers in this case testified that they could not connect
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the two sets of skid marks to one another. The officers went on to testify that they had no way of connecting the first set of skid marks to the skid marks attributed to the Vandy's Transportation tractor/trailer. Furthermore, there is no method by which to age and date skid marks. Deposition Transcript of Ofc. Heinrich, p.27, l. 14-20, Deposition Transcript of Ofc. Clark, p.13, ll.11-21; p.53, ll.12-17 Mr. Bailey, a truck driver driving some 100 to 150 yards behind the Vandy's Transportation tractor/trailer, testified that he observed the brake lights come on the trailer of the Vandy's Transportation tractor/trailer and those brake lights never went off. Therefore, there is no evidence to support that Mr. Ekdahl braked hard for several feet then let off his brake and

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braked again very hard prior to contacting the Urrutia vehicle.
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Since there is no evidence or testimony to support that the skid marks noted by the
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officers that ended some 150 feet prior to the beginning of the Vandy's Transportation tractor/trailer skid marks, these first set of skid marks should be redacted from the accident diagram. Specifically, the accident diagram should be redacted from just below .10 on page 4 of the accident diagram through the end of page 5 of the accident diagram. Furthermore, only .10

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from the accident diagram through the point of rest of the Vandy's Transportation vehicle should be allowed to be seen by the jury. Moreover, documentation of measurements in feet should also be redacted. The accident diagram indicates 900 feet of total accident scene. However, as discussed above, Officer Clark and Officer Heinrich have testified that they could not connect the skid marks that preceded the

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Vandy's Transportation skid marks due to the lack of evidence between the two sets of skid
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marks. Therefore, their accident scene of 900 feet is actually only approximately 450 feet. To
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allow the jury to believe that there was 900 feet involved in this accident is not only based upon inaccurate and erroneous evidence but also misleading and confusing. This would only serve to unfairly prejudice the defendants in this case. Moreover, because the set of skid marks that preceded the Vandy's Transportation tractor/trailer skid marks cannot be connected to this scene at all, they are irrelevant. Federal Rules of Evidence, Rules 402,403. Finally, any opinion testimony of any expert in this matter based upon his use of and belief that the first set of skid marks were related to this accident should be precluded. This testimony is without foundation and purely speculative. It would serve nothing but to confuse and mislead the jury. Federal Rules of Evidence, Rules 402, 403, 702. Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579, 592-593, 113 S.Ct. 2786, 2796 (1993), State v. Riggs, 186
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Ariz. 573 (App. 1996).
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3.

Opinions of Lay Witnesses. Defendants anticipate that one or more lay

witnesses will offer opinions beyond their knowledge. Witnesses not testifying as an expert are limited to offering those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of the fact in issue. Rules of Evidence, Rule 701. Any opinion by a lay witness

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must be rationally based on the witness' own perceptions. State v. Crivellone, 138 Ariz. 437 (1983), U.S. v. Skeet 665 F2d 983 (C.A. Ariz. 1982). 4. Plaintiffs' Testimony Concerning Relatives other than Plaintiffs is

Inadmissible Pursuant to Rules 401, 402, and 403 of the Federal Rules of Evidence. It is anticipated that Elizabeth Urrutia may attempt to testify about the relationship Jose (her father)

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had with her two minor children ages 2 and 11. Also, during the deposition of Luis Urrutia, he
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gave testimony about the large gathering of family and friends. None of these individuals have
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claims in this case. Pursuant to A.R.S. § 12-612(a). The jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating and aggravating circumstances attending the wrongful act or neglect. See also, A.R.S. §12-613. Thus, all of the plaintiffs and plaintiffs' counsel should be admonished to avoid these subjects during the testimony of the plaintiffs. 5. Photographic Evidence of the Burned Victims are Irrelevant and Should be

Precluded. Although plaintiffs' attorney has avowed to this Court that he does not intend to show a "bunch of photographs depicting burned bodies" to the jury, defendants believe that even

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one photograph is irrelevant. Furthermore, if relevant, is substantially outweighed by the unfair
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prejudicial effect on the jurors. The only reasonable conclusion as to why the plaintiffs would
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want to present photographs of burned bodies to this jury is to inflame their passions and influence their decision based upon improper grounds. Defendants do not dispute that the accident that Jose and Javier Urrutia were involved in caused their death. There is absolutely no evidence that has been presented by the plaintiffs to support any contention that either Javier or Jose burned to death. Photographs of the

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burned bodies of Javier and Jose only indicate that they, in fact, burned at some point after the accident. To expose the jurors to photographs of burned bodies and leave it for them to speculate that either Javier or Jose must have burned to death would encourage this jury to decide the merits of the case based upon improper grounds. Any photographs of the burned bodies of Jose or Javier Urrutia are irrelevant and inadmissible.

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Furthermore, whether Javier or Jose burned to death is irrelevant to the claims of the
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plaintiff in this case. There is no fact at issue with regard to the claims of the plaintiffs that
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photographs of the burned bodies of Jose and Javier Urrutia would tend to make more probably true. Federal Rules of Evidence, Rules 401, 402, 403. 6. No Comments in Opening Statement or During Direct Testimony of

Plaintiffs on the Subject of Loss of Wages, Loss of Income. In this case, plaintiffs produced Income Tax Records of Jose Urrutia which demonstrated he made a few thousand dollars in the State of California and claimed a grandchild as a dependent. He failed to claim Palma Urrutia (spouse) as a dependent. He also claimed to have earned his wages in the State of California while Palma testified in her deposition that he "never" worked in the State of California. Later, plaintiffs dropped all Wage Loss claims. There is no claim for Loss of Income or Loss of Wages

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in the past or in the future. Therefore, any comments or reference in opening statement, during
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testimony of the plaintiffs or in closing arguments made by plaintiff's counsel to the effect that
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the plaintiffs lost the "bread winner" or "hard working father" or anything related to the provision of income by Jose Urrutia is improper. That portion of the case has been abandoned and is not relevant pursuant to Rules 401, 402, and 403 of the Federal Rules of Evidence. 7. Punitive Damages. The law in Arizona requires plaintiff to prove by clear and

convincing evidence that Vandy's Transportation, Inc. or Darrell Ekdahl had an "evil mind" as

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demonstrated by a conscious disregard of a known substantial risk of significant harm. See, Volz v. Colemanco., Inc., 155 Ariz. 567, 748 P.2d 1191 (1987); Gurule v. Illinois Mutual Life and Casualty Company, 152 Ariz. 600, 734 P.2d 85 (1987); Hawkins v. Allstate Insurance Company 152 Ariz. 490, 733 P.2d 1073 (1987); Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986)

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The defendants have filed a Motion for Summary Judgment on the subject of punitive
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damages. The court denied the motion without prejudice to raise it again pursuant to Rule 50 of
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the Federal Rules of Civil Procedure. Defendants continue to assert that plaintiffs have not and will not produce sufficient evidence in this case to establish the requisite state of mind on the part of Darrell Ekdahl or Vandy's Transportation, Inc. Thus, until such time that the court decides definitively that punitive damages is a proper measure of damages, nothing should be stated about the subject to the jury. Plaintiffs' counsel should be admonished on this subject. 8. Comments or Suggestions of "Two" sets of Logs. Any testimony with regard to

the practice of a semi tractor driver keeping two sets of logs should be precluded. There is absolutely no evidence that has been presented in this case by the plaintiff that Mr. Ekdahl kept two sets of logs. Any testimony would be speculative and irrelevant. Furthermore, any such

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testimony would be unduly and unfairly prejudicial as it is not supported by any evidence.
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Federal Rules of Evidence, Rule 703. Lynn v. Helitec Corp., 144 Ariz. 564 (App. 1984),
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Federal Rules of Evidence, Rule 901, State v. Emery, 141 Ariz. 549 (1984), U.S. v. Camuti, 78 F.3d 738 (C.A. 1 Mass. 1996), Federal Rules of Evidence, Rule 402, 403. 9. Testimony of Illumination Produced by Moonlight. It is anticipated that

plaintiffs will attempt to introduce evidence of visibility based upon the amount of light provided by the moon on the night of the accident. Plaintiffs will attempt to introduce this evidence

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through the trucking regulation compliance expert, Cecil Lane, who is an ex-Arizona Department of Public Safety officer and who has absolutely no training or background or education in visibility and luminosity. When a matter is beyond a witness' expertise, the trial court should not permit the witness to testify as an expert in that area. Federal Rules of Evidence, Rule 702. Plaintiffs have

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the burden by a preponderance of the evidence of establishing that the pertinent admissibility
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requirements are met. Bourjaily v. U.S., 483 U.S. 171 (1981), Daubert v. Merrell Dow
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Pharmaceuticals, Inc. 509 U.S. 579, 592-593, 113 S.Ct. 2786, 2796 (1993), State v. Riggs, 186 Ariz. 573 (App. 1996). 10. Estimations of Speed Based Upon Alleged Violation of Federal Motor

Carrier Safety Regulation (FMCSR) Part 392.6. Any testimony based upon Federal Motor Carrier Safety Regulation, Part 392.6, which purports to support the position that Darrell Ekdahl was speeding on this particular trip or any other trip should be precluded. It is anticipated that Plaintiffs' trucking compliance regulation expert will attempt to establish and testify that Darrell Ekdahl was speeding and therefore in violation of speed limit laws based upon guidance language in Federal Motor Carrier Safety Regulation, Part 392.6. However, he bases his opinion

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upon a Department of Transportation interpretation of Federal Motor Carrier Safety Regulation,
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Part 392.6. This interpretation is guidance only, and not law. Therefore, any testimony that Mr.
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Ekdahl violated the law in any manner is speculative, and irrelevant, and a misapplication of the Federal Motor Carrier Safety Regulations. 11. Rule 302, Federal Rules of Evidence: In civil actions and proceedings, the

effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule or decision is determined in accordance with State law. Here,

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punitive damages are being sought by the plaintiffs. The case law for this State of Arizona supplies the rule of decision. 12. Plaintiffs should be admonished and precluded from mentioning the legal

standards and analysis of the Court in its July 7, 2005 denial of Defendants' Motion for
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Partial Summary Judgment. In the course of the Court denying Defendants' Motion for
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Partial Summary Judgment to exclude opinions of plaintiffs' expert, the Court conducted a
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detailed and thorough analysis. The Court's ruling did not preclude Defendants from presenting
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evidence to rebut plaintiffs' experts' opinions. Plaintiffs' counsel should be admonished not to mention or use the Court's ruling in cross-examination of Defendants' expert. See Federal Rules of Evidence, 702 and 703.

RESPECTFULLY SUBMITTED this 6th day of March, 2006.
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STRUCKMEYER AND WILSON
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s/Garvey M. Biggers____________________ Garvey M. Biggers S. Lee White Attorneys for Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc.

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ORIGINAL of the foregoing TRIAL BRIEF electronically submitted using the CM/ECF System for filing and transmittal of a Notice of Filing to the following CM/ECF registrants: Augustine B. Jimenez III AUGUSTINE B. JIMENEZ III, P.C. 3200 N. Central Ave., Suite 2550 Phoenix, AZ 85012 (Attorney for Plaintiffs) COPY (paper) of the foregoing mailed/hand-delivered (*) this 6th day of March, 2006 to: (*) The Honorable Paul G. Rosenblatt UNITED STATES DISTRICT COURT Sandra Day O'Connor US Courthouse 401 W. Washington St. Phoenix, AZ 85003

s/Garvey M. Biggers______________

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