Beavers vs. Lloyd

The Court further finds the prior incidents described in the motion papers are not sufficiently similar to the subject sidewalk trip-and- fall incident to support a broad comparative fault theory based merely on the existence of prior falls. The prior incidents involved materially different circumstances, including a slip on algae near tide pools, and a fall over a railroad tie in a pelican enclosure (ROA

244, Ex. 1, pages 17, 19). The Court is not persuaded on the present record that such evidence has substantial probative value on the issue of whether Plaintiff exercised reasonable care during the subject incident.

Accordingly, Defendant shall not argue or suggest: that Plaintiff is “accident prone,” “clumsy,” or possesses a propensity to fall; that Plaintiff’s prior falls establish comparative fault in this incident; or that the jury should infer negligence in the subject incident merely because Plaintiff experienced prior unrelated falls.

However, the motion is denied to the extent it seeks to categorically preclude all reference to the prior incidents.

Plaintiffs acknowledge that Plaintiff’s prior shoulder and knee injuries, surgeries, and treatment history are relevant to damages and causation issues. The Court further finds that limited evidence concerning the mechanism of those prior injuries may be relevant to medical causation, symptom history, impeachment, expert testimony, and the jury’s evaluation of claimed damages.

Accordingly, Defendant may: introduce evidence concerning Plaintiff’s prior shoulder and knee injuries, treatment, and surgeries; elicit limited testimony regarding the circumstances giving rise to those injuries where reasonably necessary to place the medical history in context; and examine expert witnesses concerning the same.

The Court reserves the right to revisit the scope of admissibility depending upon the evidence presented at trial, including whether Plaintiff opens the door to broader inquiry concerning prior injuries, physical condition, or claimed limitations.

Defendant shall advise all witnesses of this ruling.

So ordered.

Plaintiffs’ Motion in Limine No. 2 Plaintiffs move to exclude reference to, argument concerning, or evidence regarding prior injuries to Plaintiff Kelly Beavers’ body parts other than her right shoulder.

No opposition has been filed.

The motion is GRANTED IN SUBSTANTIAL PART.

The Court finds that evidence concerning unrelated prior injuries and medical conditions involving body parts other than Plaintiff’s

right shoulder has minimal probative value on the issues presently framed for trial and presents a substantial risk of undue consumption of time, jury distraction, and confusion of issues under Evidence Code section 352.

In her deposition, Plaintiff testified that the right knee abrasion and back discomfort allegedly sustained in the subject incident resolved. Plaintiff further represents that the primary injury claim being pursued at trial concerns the right shoulder.

In addition, Plaintiffs cite testimony from Defendant’s orthopedic expert indicating that Plaintiff’s prior unrelated injuries did not materially contribute to his opinions regarding the injuries at issue in this case and that Plaintiff’s complaints were isolated to the shoulder.

Accordingly, absent further order of the Court, Defendant shall not introduce evidence, argument, or reference concerning unrelated prior injuries, diagnoses, or treatment involving body parts other than Plaintiff’s right shoulder, including but not limited to: prior knee conditions or surgeries; thumb injuries or procedures; carpal tunnel syndrome; generalized arthritis diagnoses; or unrelated orthopedic complaints.

However, the motion is DENIED to the extent it seeks to exclude: evidence relating to Plaintiff’s prior right shoulder condition, treatment, surgeries, symptoms, or complaints; otherwise admissible evidence relevant to the causation, extent, apportionment, or credibility of Plaintiff’s claimed shoulder injuries; or impeachment or rebuttal evidence should Plaintiff place broader physical condition, functionality, mobility, or orthopedic history at issue during trial.

Nothing in this ruling precludes Defendant from requesting reconsideration outside the presence of the jury should Plaintiff “open the door” to broader medical-history evidence through testimony, expert opinion, or damages presentation.

Counsel shall advise all witnesses of this ruling.

So ordered.

Plaintiffs’ Motion in Limine No. 3 Plaintiffs move to exclude evidence of or reference to Plaintiff Kelly Beavers’ filing of workers’ compensation claims and/or receipt of workers’ compensation benefits arising from prior incidents occurring in approximately 2008 and 2014.

No opposition has been filed.

The motion is GRANTED.

The Court finds that the fact Plaintiff filed workers’ compensation claims and/or received workers’ compensation benefits in connection with prior unrelated incidents has minimal, if any, probative value with respect to the issues to be decided in this action, including liability, comparative fault, causation, and damages.

The motion is narrowly directed to the existence of workers’ compensation claim filings and benefits.

The Court further finds that introduction of workers’ compensation claim or benefit evidence would create a substantial danger of: undue prejudice; jury confusion; distraction from the actual issues for trial; and improper character or propensity inferences, including the suggestion Plaintiff is unduly litigious. (Evid. Code § 352.)

Additionally, evidence concerning collateral source benefits is generally inadmissible absent some independent and legitimate evidentiary purpose not presently identified in the record before the Court.

Accordingly, absent further order of the Court, Defendant, counsel, and witnesses shall not: reference Plaintiff’s filing of workers’ compensation claims; reference Plaintiff’s receipt of workers’ compensation benefits; reference workers’ compensation proceedings; suggest Plaintiff received compensation from collateral sources; or argue or imply Plaintiff is litigious based upon prior workers’ compensation claims.

This ruling does not preclude otherwise admissible evidence concerning: Plaintiff’s prior injuries; prior treatment; prior surgeries; prior symptoms; or medical causation evidence, provided no reference is made to workers’ compensation claims, proceedings, or benefits. The Court reserves the right to revisit this ruling should Plaintiff open the door to such evidence through testimony or argument at trial.

Counsel shall advise all witnesses of this ruling.

So ordered.

Plaintiffs’ Motion in Limine No. 4 Plaintiffs move to exclude evidence of, argument concerning, or reference to previously dismissed defendants, including the City of

Newport Beach, the City of Costa Mesa, Andrew Lloyd, and Tamara Lloyd.

No opposition has been filed.

The motion is GRANTED IN SUBSTANTIAL PART.

The Court finds that reference to the dismissal, absence, or nonparticipation of previously dismissed defendants has minimal probative value and presents a substantial risk of jury confusion, speculation, undue prejudice, and distraction from the issues to be decided at trial. (Evid. Code §§ 350, 352.)

Accordingly, absent prior leave of Court, Defendant, counsel, and witnesses shall not: reference the dismissal of any previously named defendant; suggest or imply that previously dismissed defendants bear legal responsibility for Plaintiffs’ alleged injuries; invite the jury to speculate regarding the absence of any previously named defendant; or reference settlements, dismissals, or other procedural dispositions involving previously dismissed defendants.

However, the motion is DENIED to the extent it seeks to categorically prohibit all factual references involving previously named defendants where such references are reasonably necessary to provide coherent testimony, foundation, or context concerning the incident location, surrounding property, investigation, maintenance history, or other otherwise admissible evidence.

Nothing in this ruling precludes counsel from requesting clarification outside the presence of the jury should a witness reference or exhibit arguably implicate a previously dismissed defendant in a manner not anticipated by this order.

Counsel shall advise all witnesses of this ruling.

So ordered.

Plaintiffs’ Motion in Limine No. 5 Plaintiffs move to preclude Defendant County of Orange’s retained safety expert, Dr. Gidon R. Vardi, from referring to “trivial defect” case law or otherwise invoking the trivial defect doctrine during his testimony at trial.

The motion is GRANTED IN PART and DENIED IN PART.

The Court agrees with Plaintiffs that expert witnesses may not instruct the jury concerning California law, characterize appellate decisions, or offer legal conclusions concerning whether a condition

is “trivial as a matter of law.” The Court further agrees that references to purported California legal standards such as “anything up to an inch and a half is trivial” create a substantial risk of jury confusion and risk improperly intruding upon the Court’s role in instructing the jury on applicable legal principles. (Evid. Code § 352.)

Accordingly, Dr. Vardi shall not: instruct the jury concerning California “trivial defect” case law; characterize or summarize holdings of California appellate decisions; testify concerning purported numerical legal thresholds under California law; opine that the subject condition was “trivial as a matter of law”; or otherwise offer legal conclusions concerning the application of the trivial defect doctrine.

However, the motion is denied to the extent Plaintiffs seek to broadly preclude otherwise admissible expert testimony concerning the physical characteristics of the condition at issue or the magnitude of the risk allegedly presented.

The Court finds that testimony concerning: measurements and geometry of the sidewalk condition; applicable codes, standards, and ASTM guidelines; visibility and conspicuity; pedestrian mechanics and human factors; maintenance practices; risk analysis; probability and severity of harm; and whether the condition presented a minor versus substantial risk of injury may assist the jury in evaluating the issues presented under Government Code section 835 and the applicable CACI instructions concerning “dangerous condition.”

Nothing in this ruling precludes Dr. Vardi from offering technical or engineering opinions within the proper scope of his expertise, provided he does not purport to instruct the jury on California law or substitute legal conclusions for factual or technical analysis.

The Court further notes that, despite Plaintiff’s enthusiasm, denial of Defendant’s prior motion for summary judgment did not constitute an affirmative adjudication that the subject condition was non-trivial as a matter of law but merely reflected the existence of triable factual issues.

Counsel shall advise all witnesses of this ruling and shall caution witnesses not to volunteer prohibited legal opinions or legal commentary in the presence of the jury.

So ordered.

Defendant’s Motion in Limine # 1

In a mirror image version of Plaintiff’s MIL # 5, Defendant County of Orange moves to preclude Plaintiffs’ retained safety expert, Brad Avrit, P.E., from referring to the subject sidewalk as a “dangerous condition,” offering opinions that the sidewalk constituted a “dangerous condition of public property,” or otherwise providing legal definitions or legal conclusions concerning the term “dangerous condition.”

Consistent with the Court’s ruling on Plaintiff’s MIL on the same subject, the motion is GRANTED IN PART and DENIED IN PART.

The Court agrees with Defendant that expert witnesses may not instruct the jury concerning the legal definition of “dangerous condition,” offer legal conclusions concerning whether a condition constitutes a “dangerous condition of public property” within the meaning of Government Code section 835, or otherwise invade the Court’s role in instructing the jury on applicable law. (Evid. Code §§ 801, 352.)

The Court further agrees that permitting an expert witness to define “dangerous condition” using terminology inconsistent with or supplemental to the governing CACI instructions creates a substantial risk of juror confusion and risks improperly conflating technical opinions with legal standards.

Accordingly, Mr. Avrit shall not: instruct the jury concerning the legal meaning of “dangerous condition”; offer purported legal definitions of that term; testify that the sidewalk constituted a “dangerous condition of public property” within the meaning of California law; or otherwise offer legal conclusions concerning the ultimate application of Government Code section 835 or CACI 1102.

However, the motion is denied to the extent Defendant seeks to broadly preclude otherwise admissible expert testimony concerning the physical characteristics of the sidewalk condition, perceptibility issues, accident mechanics, or related safety considerations.

The Court finds that testimony concerning: height differentials; geometry and spacing of the sidewalk uplifts; visibility and conspicuity; faded warning paint; lighting and shadow conditions; line-of-sight and perceptibility issues; pedestrian movement and tripping mechanics; human factors considerations; maintenance practices; inspection practices; and whether the condition presented a tripping hazard or increased risk of injury may assist the jury in evaluating the issues presented under Government Code section 835 and the applicable CACI instructions.

Nothing in this ruling precludes Mr. Avrit from offering technical, engineering, safety, accident reconstruction, or human factors opinions within the proper scope of his expertise, provided he does not purport to instruct the jury on California law or substitute legal conclusions for factual or technical analysis.

The Court notes that this ruling is intended to preserve the distinction between admissible expert analysis concerning safety and perceptibility issues versus inadmissible expert testimony concerning legal standards and ultimate legal conclusions reserved to the Court and jury.

Counsel shall advise all witnesses of this ruling and shall caution witnesses not to volunteer prohibited legal opinions or legal commentary in the presence of the jury.

So ordered.