Rivera v. Robinson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MELISSA RIVERA AND RICARDO CIVIL ACTION

SILVA, SR.

VERSUS NO: 18-14005

JENNIFER ROBINSON, ET AL SECTION: "S" (4)

ORDER AND REASONS

IT IS HEREBY ORDERED that plaintiffs' Motion to Allow the Golden Rule (Rec.

Doc. 123) is DENIED as premature;

IT IS FURTHER ORDERED that plaintiffs' Motion in Limine to Exclude Improper

Inflammatory Terminology at Trial by Defense Counsel (Rec. Doc. 124) is DENIED as moot

with respect to the terms "bullet bike" and "donor cycle", DENIED with respect to the term

"zipper bike", and DENIED as premature with respect to the term "crotch rocket";

IT IS FURTHER ORDERED that plaintiffs' Motion in Limine to Suppress Statements,

Testimony, and Affidavits of Witnesses Not Present at the August 25, 2018 Accident (Rec. Doc.

125) is DENIED;

IT IS FURTHER ORDERED that defendants' Motion in Limine to Exclude Plaintiffs'

Exhibit P-40 (Rec. Doc. 128) is GRANTED in part and DENIED in part, and exhibits P-40a,

P-40c and P-40cc, P-40d and P-40dd, and P-40f and P-40ff are admissible. P-40aa is admissible

provided a stipulation can be reached.

BACKGROUND

This action stems from a motorcycle-automobile accident that occurred on August 25,

2018. Plaintiffs' son, Ricardo Silva, Jr. ("Silva"), was driving his motorcycle southbound on

Highway 1082 in Covington, Louisiana; defendant Jennifer Robinson ("Robinson") was driving

her automobile northbound. Despite the fact that they were approaching one another head on,

Robinson did not see Silva, and made a left turn into her driveway. Silva collided with the rear

right side of Robinson's vehicle. Silva was transported by ambulance to St. Tammany Parish

Hospital, where he died approximately one hour later.

Silva's parents filed the instant wrongful death suit, alleging that Robinson's negligence

caused the accident because she was driving aggressively, was inattentive, and was distracted by

her cell phone and entertainment system, and later amended their complaint to further allege that

Robinson's medication may have played a role in the accident. In their answer to the complaint,

defendants contend that Silva contributed to this accident in that he created a sudden emergency,

failed to maintain reasonable vigilance, failed to utilize the last chance to avoid the accident, and

drove at an unreasonably dangerous rate of speed under the circumstances.

In the present motions in limine, both parties have raised issues concerning the

admissibility of certain evidence and arguments at trial. The court addresses them in turn below.

DISCUSSION

1. Motion to Allow Golden Rule Argument

"Golden Rule" arguments are arguments which ask the jurors to stand in the shoes of a

party. Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 180 (5th Cir. 2005). “A plea to the

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jury members to 'put themselves in the shoes of the plaintiff and do unto him as they would have

done unto them under similar circumstances ... [is] improper because it encourages the jury to

depart from neutrality and to decide the case on the basis of personal interest and bias rather than

the evidence.'” Id. (quoting Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir.1978).

However, the Fifth Circuit has also held that "[t]he use of the Golden Rule argument is improper

only in relation to damages. It is not improper when urged on the issue of ultimate liability."

Stokes v. Delcambre, 710 F.2d 1120, 1128 (5th Cir. 1983)(citing Burrage v. Harrell, 537 F.2d

837 (5th Cir.1976)). In Stokes, the plaintiff was assaulted while being held in Vermilion Parish

jail, and the court found that it was not impermissible for counsel, in his closing argument, to ask

the jury to put themselves in Stokes' place to determine whether his fears and resultant failure to

request help were reasonable, because "[t]his determination went to the ultimate question of

liability, not the amount of damage." Id. Thus, the permissibility of Golden Rule arguments turns

on whether they are directed to the reasonableness of a parties' actions (i.e. liability), rather than

how a juror would wish to personally be compensated under similar circumstances.

In the case before the court, counsel for plaintiffs argues that he does not intend to make

an impermissible damages-oriented Golden Rule argument; however, counsel has not disclosed

precisely what permissible Golden Rule argument he plans to make. Accordingly, the court is

not equipped to rule definitively on whether his proposed argument is allowed, although to the

extent it is directed to the question of liability rather than damages, and is otherwise admissible,

it will be allowed. Accordingly, plaintiffs' motion to allow Golden Rule argument is denied as

premature.

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2. Motion in Limine to Exclude Improper Inflammatory Terminology at Trial by

Defense Counsel

In this motion, plaintiffs seek an order prohibiting the use of the terms “crotch rocket”

“bullet bike,” “zipper bike,”or “donor cycle” instead of the terms "sport bike," 'sport

motorcycle," "sport touring motorcycle," "Honda sport motorcycle," or "Honda sport touring

motorcycle" to refer to Silva's motorcycle, by counsel and witnesses at trial any time before the

jury. In arguing for this prohibition, plaintiffs contend that "improper term[s] . . . are used by

Defense Counsel and defense witnesses solely to prejudice and pre-condition the jury. . . [and]

[t]herefore, any mention of this terminology . . . will unfairly prejudice the Plaintiffs." Pltfs'

Memo, Rec. Doc. 124-1, pp. 1-2. Counsel further argues that "[t]he terms [crotch] rocket, donor

cycle, rocket bike, zipper bike or bullet bike [are] inflammatory and prejudicial. Id. at 4.

Defendants oppose the motion, arguing that slang terms are not inherently objectionable,

and to require witnesses to substitute in new and formal terms when testifying, in place of the

terms actually used in their previous depositions, would tend to make the witnesses appear

coached and negatively affect their credibility.

Rule 402 of the Federal Rules of Evidence provides that “[a]ll relevant evidence is

admissible, except as otherwise provided by the Constitution of the United States, by Act of

Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory

authority.” Relevant evidence is “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” FED. R. EVID. 401.

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However, Federal Rule of Evidence 403 allows the court to exclude evidence "if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." Fed. R. Evid. 403.

The court notes that the terms "bullet bike" and "donor cycle" were not used by any

witness in prior depositions, and defense counsel has represented that it does not intend to use

them. Accordingly, the motion is denied as moot with respect to those terms, with the caveat that

if witnesses invoke them at trial, a contemporaneous objection may be made, which the court

will rule on in the context of trial.

As for the term "zipper bike," it does not strike the court as inherently pejorative, nor

does the witness testimony related to it appear prejudicial. For instance, when witness Gayle

Jenkins was asked in deposition how she would describe the motorcycle she saw before the

crash, she stated “It was red, and it was what they call, I guess, a zipper bike. It's the term used

for them. That’s about it.”1 The witness is simply describing the bike as she understands it, using

what is apparently a common term for that type of bike. No cases have been cited indicated that

the term is prejudicial. Accordingly, the motion is denied with respect to the term "zipper bike."

As for the term "crotch rocket", plaintiffs' counsel has submitted two state court orders

with their Reply excluding the use of the term "crotch rocket" as inflammatory,2 as well as an

1 Exh. P-73, Deposition of Gayle Jenkins 2:19-2:23.

2 Vanzyl v. Fain, 2011 Fla. Cir. LEXIS 3861; Meyette v. Am. Std. Ins. Co. of Wisconsin,

2011 Colo. Dist. LEXIS 524.

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order from Civil District Court for the Parish of Orleans excluding improper inflammatory

terminology, which plaintiffs' counsel represents was based on a motion regarding the term

crotch rocket.34

In contrast, there are numerous cases in which the term "crotch rocket" is used in

testimony and by courts without any apparent controversy. See, e.g., People v. Koulakes, 2017

WL 192061(Ill. App. 4th Jan. 3, 2017); State v. Gaines, 2014 WL 1887659 (Ohio App. 6th May 9,

2014)(Explaining that "'crotch rocket' is a term used to describe a low profile, sport-style

motorcycle, where the rider is required to lean forward while driving, as opposed to a

touring-style cycle where the rider is in a more upright position."); Catlin v. City of Wheaton,

574 F.3d 361, 363 (7th Cir. 2009)(explaining that “ '[c]rotch rocket' is apparently a slang term

for a sport-motorcycle. The foot pegs and shifters on this type of motorcycle are placed farther

back than usual, causing the rider to lean forward and assume an aerodynamic position."); State

v. Heironimus, 356 P.3d 427, 429 (Kan. App. 2nd 2015); McCormick v. Tyrpa, 2003 WL

22234694, at *3 (Minn. App. Sept. 30, 2003); State v. Lewis, 2019 WL 4733469 (Ohio App. 6th

Sept. 27, 2019). Granted, these cases do not present the question in the context of a fatal

motorcycle accident being tried to a jury, though some present scenarios where perceived

3 Rec. Doc. 141-4, Riley v. Harley Davidson, 2010-636, Civil Dist. Ct., Parish of Orleans

(June 16, 2015).

4 Plaintiffs' also submitted Exhibit A to their Reply, Rec. Doc. 141-1, which they purport

to be ruling from a Florida state court prohibiting the use of the term "crotch rocket" as a

prejudicial attempt to characterize the motorcycle involved as exceptionally fast. However, the

document submitted is simply a motion by the plaintiffs in the Florida case seeking such a

ruling; it does not include the court's ruling, nor could this court locate one.

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recklessness is at issue (e.g., McCormick, supra, involved a custody dispute in which one parent

was alleged to have transported the child on a crotch rocket at unsafe speeds; Lewis, supra,

involved a motorcyclist shooting into a car, and the passenger testified her assailant was one on

one of "15 to 20 crotch rocket motorcycles driving recklessly."). These cases do not serve as

authority for the premise that the term "crotch rocket" is per se admissible. What they do

suggest, however, is that the term is not per se prejudicial – while slang, it is used as a neutral

descriptor in many contexts.

“An order in limine excludes only clearly inadmissible evidence; therefore, evidence

should not be excluded before trial unless it is clearly inadmissible on all potential

grounds.”Auenson v. Lewis, 1996 WL 457258, at *1 (E.D. La. Aug. 12, 1996). Because the

evidence plaintiffs' seek to exclude is not clearly inadmissible on all potential grounds, the court

declines to rule on this question in advance of trial without the opportunity to resolve the

questions of foundation, relevance, and any potential prejudice in context. However, the court

cautions counsel that if during trial they anticipate that a witness is preparing to use this or any

other potentially inflammatory or prejudicial term, counsel should call it to the court's attention

at the bench and the court will rule at that time. Accordingly, this motion is denied as premature.

3. Motion in Limine to Suppress Statements, Testimony, and Affidavits of Witnesses

Not Present at the August 25, 2018 Accident

This is the second motion in limine in which plaintiffs seek to exclude the statements and

affidavits of several witnesses who did not witness the actual accident, but who submitted

statements concerning Silva's speed minutes before the accident, arguing that because they were

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not present during the crash they have no relevant testimony to provide because they have no

personal knowledge of the accident. The court previously held that evidence of Silva's speed and

possible erratic driving (swerving out of his lane, and forcing other drivers out of theirs) in the

minutes before the accident is potentially relevant to defendants' defense that Silva contributed to

the accident by creating a sudden emergency, failing to maintain reasonable vigilance, failing to

utilize the last chance to avoid the accident, and driving at an unreasonably dangerous rate of

speed under the circumstances. See FED. R.EVID. 401. While it is true that none of the

individuals personally knew Silva or could conclusively identify him, those are subjects for

cross-examination that go to the weight the jury accords to the evidence.

Accordingly, this motion in limine is denied.

4. Defendants' Motion in Limine to Exclude Plaintiffs' Exhibit P-40.

Defendants have moved to exclude plaintiffs' exhibit P-40, which consists of one 911

event report from the St. Tammany Parish Sheriff’s Office, and six 911 audio recordings and the

transcripts of those calls. Plaintiffs do not oppose the exclusion of exhibits P-40b, P-40bb, P40-e,

and P-40 ee. Thus, remaining at issue are the 911 event report and the calls to 911, as well as the

transcripts of the 911 calls. Defendant contends that the proposed exhibits are not authenticated,

and the calls and transcripts, reporting the same accident, are cumulative.

Exhibit P-40 is a print out of the 911 event report, produced by the St. Tammany Parish

Sheriff's Office. It is a a public record from the office where items of this kind are kept. As such,

it meets the requirements for authenticity. See Fed R. Ev. 901(b)(7).

Plaintiffs contend that the the call recordings and transcripts for sub-exhibits P-40c and

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P-40cc, P-40d and P-40dd, and P-40f and P-40ff (three individuals who called 911 from the

accident scene) will be authenticated through the witnesses at trial, and their testimony will

pertain to Silva's physical condition after the crash based upon their personal knowledge.

Plaintiffs contend that the testimony is relevant to the plaintiffs’ survival claim.

The court finds that the testimony is potentially relevant, and three brief 911 calls are not

overly cumulative.

Finally, exhibit 40a is the recording and 40aa the transcript of the 911 call made from

defendant Jennifer Robinson's cell phone immediately after the accident. Defendants seek to

exclude the transcript because it is incomplete, and reflects that certain items which were audible

on the tape are noted as inaudible and left blank on the transcript. In response, plaintiffs' counsel

represents that he has made efforts to correct the transcripts. It is not clear from the record

whether the corrections render the transcripts acceptable to defendants. However, if the parties

are unable to stipulate to a transcript of the tape, the transcript will be excluded and the

audiotape admitted as the best evidence of what is on the audiotape.

Accordingly, this motion is granted in part and denied in part, and exhibits P-40a, P-40c

and P-40cc, P-40d and P-40dd, and P-40f and P-40ff are admissible. P-40aa is admissible

provided a stipulation can be reached.

New Orleans, Louisiana, this Ist day of June, 2020.

fA ll epee

Dhcg Me Gi

UNITED STATES DISTRICT JUDGE