Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Marshall Meyers (020584) Shalev Amar (022332) KROHN & MOSS, LTD. 111 West Monroe, Suite 711 Phoenix, AZ 85003 (602) 275-5588 (866) 385-5215 (facsimile) Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) Case No. CIV 03-869-PHX-FJM CHARLES DE SHAZER, Plaintiff, ) vs. ) RESPONSE TO FREIGHTLINER ) MOTION IN LIMINE NO. 2 NATIONAL RV HOLDINGS, INC., ) (REGARDING PROOF OF and FREIGHTLINER CUSTOM ) CAUSATION) CHASSIS CORPORATION Defendants. ) Plaintiff hereby responds to Defendant's motion in limine No. 2 regarding proof of causation: I. PLAINTIFF NEED NOT IDENTIFY THE SOURCE OF DEFECTS. Underneath the argument Plaintiff needs to trace a problem with his motor home

to the chassis (i.e., identify a defect) is the misconception that a precise defect or malfunction and the reason therefore must be identified. This argument is universally

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rejected and discredited by courts across our Country ­ including our Supreme Court. Dietz v Waller, 141 Ariz. 107, 685 P.2d 744 (Ariz. 1984). In Dietz, the issue was whether the boat that was the subject of the lawsuit was

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defective at the time of sale. When the plaintiff failed to produce direct evidence of a defect, the trial court granted the defendant a directed verdict, which the court of appeals affirmed. Our Supreme Court reversed the lower courts, holding circumstantial evidence

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of defect sufficient to sustain a claim for breach of warranty. Id. at 110, 747. The Court held as such because in the Court's opinion it is unrealistic to expect [plaintiffs] to be able to prove that a particular products was sold in defective condition Id. (emphasis added). See also Souza v Fred Carries Contract, Inc. 191 Ariz. 247, 955 P.2d 3 (App. 1997) ("circumstantial evidence of a defect and causation is generally acceptable, particularly when, as here, a motor vehicle is not available for inspection"); Rocky Mountain Fire & Cas. Co. v Biddulph Oldsmobile, 131 Ariz. 289, 640 P.2d 851 (Ariz. 1982) ("no specific defect need be shown if the evidence, direct or circumstantial, permits the inference" of defect). For this exact reason, i.e., the inability to satisfy an impossible burden of proof, the Dietz logic is the universally accepted reasoning in cases such as these. See, e.g., Mason v Porsche Cars North America, Inc., 688 So.2d 361 (Fla. Dist. Ct. App. 1997) (holding consumer need only identify effect of defect or malfunction, not its cause). See Appendix A.

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Here, the RVIA arbitration agreement between Defendants is a party admission that motor home defects often have multiple undeterminable causes. If causation was readily apparent, why would motor home and motor home component manufacturers

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secretly arbitrate to apportion liability between each-other? Regardless, for the above mentioned reasons, Plaintiff has no burden to prove causation with precision. II. CONCLUSION. WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests that this Honorable Court DENY Freightliner's motion in limine No. 2 be in its entirety.

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RESPECTFULLY SUBMITTED this 30th day of January 2006.

By: s/Marshall Meyers___________ Marshall Meyers Shalev Amar KROHN & MOSS, LTD. 111 W. Monroe, Ste. 711 Phoenix, AZ 85003 Attorney for Plaintiff Filed electronically on this 30th day of January 2006, with: United States District Court CM/ECF system Courtesy Copy mailed this 30th day of January 2006, to: Hon Frederick J. Martone United States District Court, District of Arizona 401 West Washington Phoenix AZ 85003 s/Shalev Amar Shalev Amar

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