Free Trial Brief - District Court of Arizona - Arizona

I Marshall Meyers (020584)
2 KROHN & MOSS, LTD. r
111 West Monroe, Suite 711 I
3 Phoenix, AZ 85003
(602) 275-5588
4 (866) 385-5215 (facsimile)
5 Attorney for Plaintiff
6 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
7
8 CHARLES DE SHAZER, )
) Case No. CIV 03-869-PHX-EIM
9 Plaintiff, )
vs. ) PLAINTIFF’S TRIAL BRIEF WITH Y
I0 NATIONAL RV, INC., and ) OBJECTIONS TO DEFENDANT’S 1
H FREIGHTLINER CUSTOM CHASSIS ) EXHIBITS
CORPORATION, )
12 )
13 Defendants. )
14
(a) Defense Exhibit No. 52 “Iradewinds Owner’s Guide (as attached to Mr. Roddy’
15 ’
16 Affidavit in support of National RV’s summary judgment motion)" Upon information and belie
17 defendant has not offered any evidence of abuse, misuse, improper operation or any otbe
l8 affirmative defense that would make such a complex and huge document relevant, However, th
19 document besides adding unnecessary confusion obscuring the actual issues also contains writte
20 j
language prepared in anticipation of litigation, warrantor statements of what it alleges is not
21 . g
22 defect in violation of 16 Cf R. 700.8, additional requirements imposed on consumers and othe
23 issues not part of the single document warranty at issue as well as numerous out of cour
24 statements by the party offering the document that are offered to prove the truth ofthe matter i
25 X
court. j
26
27 (b) Defense Exhibit No. 53 "Roddy inspection photographs NRV—Photo l through
28 NRV-Photo 25 (as attached to Mr Roddy’s Affidavit in support of National RV’s summar_
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I judgment motion)” Defendant promised a defect-free consumer good at the time of pur chase. I
2 is undisputable the motor home has experienced numerous defects Upon information and belief, i
3 Mr. Roddy’s photographs were taken after the warranty had expired lf liability did not attac
5 during the warranty period or with defects existing in the subject motor home after the expiratio
6 ofthe primary warranty then liability fer a breach can never realistically attach Not only can th
7 pictures not represent the condition ofthe motor home during the relevant periods of th
8 applicable warranty, they are intended to be prejudicial to plaintiffs character as the subjec
1; motor home is plaintiffs home and defendant wants to parade plaintiffs most intimate an U
ll private living space before a jury to, at best, argue a situation that occurred long after defendan
12 breached it’s warranty years before.
14 (c) Defense Exhibit No. 54: "RO# 3341 (NRV-00002-0024 throug
15 NRV-00002—0031);" Defense Exhibit No. 55. "National RV repair record of 5/ 12/99 consistin
ig, of RO#s 22383, 223 84 and 22385" and, Defense Exhibit No "56 National RV repair record o
U 9/ 15/99 consisting of RO# 21977S (4 pp.)" Plaintiff has a limited objection to such document
lg relating to defendant’s designated repair agent’s statements within such documents involving an_
Qi party’s character and/oi opinions on ultimate issues, specifically out of court opinion statement l
21 attempting to prove a matter in court No foundation was or can be adequately laid for suc
22 opinions, nor were the dealership personal disclosed as opinion witnesses Plaintiff would b
23 severely prejudiced because it would be impossible to cross-examine such non-present witnesses.
24
25 (d) Defense Exhibit No. 57. “Gas reimbursement request and payment records (5/99)
26 ($100.00) (3 pp.)" Said document is irrelevant to any claim or defense, it also involves an Grit
27 to compromise. And the document is hear say.
28
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I (e) Defense Exhibit No. 58. "Freightliner· warranty history on Mr. DeShazer’s moto
2 home (FCCOOOI-0017) ." Plaintiff objects as the document is not the best evidence; is duplicativ i
jr and redundant of information contained in repair documents and was authored by party offerin
5 it for evidence.
6 (f) Defense Exhibit No. 60. Jody Adams’s Inspection Report, with attachment
7 (FCCOOBI-39). Plaintiff objects as the documents offered are hearsay without an exception an
; were prepared by a party in anticipation oflitigation. Upon information and belief; the author o
10 such document is listed as a witness and said witness testimony is the best evidence.
ll (g) Defense Exhibit No. 61 "Preightliner Invoice for the chassis used to manufacture
E Mr. DeShazer’s motor home (PCC—Ol‘74—79).” It is anticipated that defendant will offer thi
14 evidence to argue limitation of damages. However, there is evidence that the defects i
15 defendant’s product caused fereseeable direct damage to interconnected components an
16 systems. No applicable measure ofdamages fer a breach ofwarranty is so limited and to do so i
17 absurd. It would be akin to holding that a when a 2 cent connecting rod nut breaks th
3; warrantor’s damages are limited to the cost of the nut despite the huge hole in the engine blocl
20 that would not exist but fer the defect.
21 (h) Defense Exhibit No. 61 "Inspection video tapes (I*CCOO042l-423)" Defendan
22 promised a defect—free consumer good at the time of purchase It is undisputable the motor hom
23
24 experienced numerous defects since new Upon information and belief; Mr. Roddy’s video tap
25 was created after the warranty had expired If liability did not attach dining the warranty perio
26 or with defects existing in the subject motor home after the expiration of the primary warrant;
27 then liability for a breach can never realistically attach. Not only can the video proffered no
28 represent the condition ofthe motor home during the relevant periods ofthe applicable warranty,
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I 1
I it is prejudicial to plaintiffs character as the subject motor home is plaintiff’s home an
2 defendant wants to parade plaintiff` s most intimate and private living space before a jury to, a V
3
best, argue a situation that occurred long after defendant breached it’s warranty years before. ·
4 E
5 Also, upon information and belief defendant cannot provide proper foundation for suc
6 an exhibit.,
7
8 Respectfully submitted this day of , 2006
9
ll By: ·
12 - Marshall Meyers A
KROHN & MOSS, LTD. S
I3 lll West Monroe, Suite 7ll
Phoenix, AZ 85003
14 (602) 275 5588 {
15 Attorneys for Plaintiff Charles ("Chucl<” De
Shazer)
16
17 5
rs
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25 ;
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27 ?
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