# Rivera v. Robinson

> District Court, E.D. Louisiana · June 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10185545

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** June 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185545

## How later opinions describe it (automated extraction)

- 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."

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185545. Public record. Not legal advice.