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Home My WebLink About2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 043 - Plaintiffs' Motion In Limine To Preclude Evidence Under Cre 401, 402, 403 And 404DISTRICT COURT, LARIMER COUNTY, STATE OF COLORADO Court Address: 201 Laporte Ave. Fort Collins, CO 80621 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, STATE OF COLORADO Court Use Only Attorneys for Plaintiffs: Laura Browne, # 46673 Ashley Fridovich, # 47538 WILHITE, ROSE, MCCLURE &, SAWAYA P.C. 1600 Ogden Street Denver, CO 80218 Phone Number: (303) 839-1650 FAX Number: (303) 832-7102 E-mail: lbrowne@sawayalaw.com afridovich@sawayalaw.com Case Number: 2020CV30363 Division: 5A PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EVIDENCE UNDER C.R.E. 401, 402, 403 AND 404 COME NOW the Plaintiffs, Stuward Cross and Katrina Richman, by and through their attorneys Wilhite, Rose, McClure & Sawaya, P.C. and hereby submit their Motion in Limine To Preclude Evidence Under C.R.E. 401, 402, 403 and 404. Plaintiffs state for their Motion the following: RULE 121 CONFERRAL STATEMENT Counsel for Plaintiffs conferred with counsel for Defendant prior to filing this Motion. Defendant opposes this Motion. DATE FILED: October 11, 2021 9:41 PM FILING ID: DA8F83C2EB94C CASE NUMBER: 2020CV30363 1. On June 7, 2017, Plaintiff Stuward Cross was operating a taxi cab with Plaintiff Katrina Richman as his front-seat passenger. Plaintiffs were struck by a dump truck operated by Mr. Antonio Lopez, now deceased. Mr. Lopez was on the job and in the course and scope of his employment for Defendant City of Fort Collins. Plaintiffs were injured in the motor vehicle incident and received medical treatment for their injuries. 2. Over the course of Plaintiff Richman’s deposition, some facts were revealed which should be inadmissible at trial under C.R.E. 401, 402, 403 and 404. I. Evidence to Be Excluded 3. During the course of her deposition, Plaintiff Richman revealed the followings  She had previously been homeless in the years of 2013 and 2014. See Exhibit 1, Deposition Transcript of Katrina Richman, p. 83, lines 12-14.  That she is “poor.” Id. at p. 59, line 16; p. 100, line 12.  That she was previously strangled in an episode of domestic violence. Id. at p. 82, line 22.  That she was previously assaulted by her daughter. Id. at p. 84, line 5.  That she is unemployed and has not worked full-time since 2007. Id. at p. 16, lines 20- 22. 4. 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 or less probable than it would be without the evidence. C.R.E. 401. 5. Irrelevant evidence is not admissible. C.R.E. 402. 6. This is a straightforward personal injury case where Plaintiffs are alleging Mr. Lopez breached his duty of care to drive safely and Defendant City of Fort Collins is vicariously liable for that negligence. As a result of the negligence, Plaintiffs claim caused certain damages including medical bills. 7. Although relevant, evidence may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. C.R.E. 403 8. Should the Court find any relevance to Plaintiff’s employment status, this evidence should be excluded under C.R.E. 403. 9. Regarding Plaintiff’s former homeless, counsel for Defendant did not elicit any testimony that Plaintiff Richman suffered any particular physical or mental ailment as a result of being temporarily homeless. See Exhibit 1, p. 83, lines 12-14. Plaintiff Richman’s past temporary homelessness does not affect her claims or any of Defendant’s defenses. Any such evidence is irrelevant under C.R.E. 401 and 402. Furthermore, even if such evidence is deemed relevant, it is highly prejudicial to Plaintiff Richman. It is no secret that a large section of the community has disdain for the homeless population and it would be likely Plaintiff Richman would receive some negative consequence as a result of this fact being in evidence. The prejudice which would be experienced by Plaintiff Richman should this evidence be allowed in is not outweighed by any potential probative value. For this reason, the evidence should be excluded under C.R.E. 403 as well. 10. Regarding Plaintiff Richman’s financial status, evidence of Plaintiff Richman’s self-description as being “poor” does not affect her claims or any of Defendant’s defenses. Any such evidence is irrelevant under C.R.E. 401 and 402. Furthermore, even if such evidence is deemed relevant, it is highly prejudicial to Plaintiff Richman. The jury, upon hearing that Plaintiff Richman is “poor,” may make the assumption that her medical bills were paid by Medicaid or Medicare and thus unfairly reduce her medical damages in violation of the collateral source rule. The prejudice which would be experienced by Plaintiff Richman should this evidence be allowed in is not outweighed by any potential probative value. For this reason, the evidence should be excluded under C.R.E. 403 as well. 11. Plaintiff Richman described two instances of physical violence she had experienced prior to the motor vehicle collision in her deposition. The first was an instance of partner d omestic violence; specifically strangling. See Exhibit 1, at p. 82, line 22. The second was an instance of family domestic violence. Id. p. 84, line 5. While Plaintiffs understand the relevance of prior injury to the same body parts Plaintiff Richman is claiming in this lawsuit were injured in the collision, Plaintiffs request the Court restrict the eliciting of testimony on this topic by Defendant’s counsel to the basic fact of the injury, and preclude details regarding the surrounding nature of the injuries and who was involved in the injuries. Such details are not relevant under C.R.E. 401 and 402, and serve only to harass and re-victimize Plaintiff Richman. Such evidence could also be prejudicial under C.R.E. 403 and should be excluded. 12. Regarding Plaintiff Richman’s lack of employment, Plaintiff Richman is not claiming any lost wages. Her lack of employment does not affect the medical bills she incurred as a result of the medical treatment following this collision. Her lack of employment likewise does not affect the amount of physical pain she experienced, nor her anxiety while driving since the collision. Any such evidence is irrelevant under C.R.E. 401 and 402. Furthermore, even if such evidence is deemed relevant, it is highly prejudicial to Plaintiff Richman. Again, jurors are likely to have a negative connation with the fact that Plaintiff Richman does not work and may assume she is receiving some sort of government assistance, which could lead them to reduce her damages award. The prejudice which would be experienced by Plaintiff Richman should this evidence be allowed in is not outweighed by any potential probative value. For this reason, the evidence should be excluded under C.R.E. 403 as well. II. Character Evidence 13. Plaintiffs anticipate that Defendant may seek to elicit the above evidence for the purpose of biasing one or more jurors against Plaintiff Richman based on these facts alone. Plaintiff Richman’s prior temporary homeless, financial and employment status, and history of domestic violence, are not issues in this case, and are not relevant to any fact needed to determine it. At most, Plaintiff’s employment status speaks to a character trait, which is “not admissible for the purpose of proving that [she] acted in conformity therewith.” C.R.E. 404. As such, it should be excluded from evidence. WHEREFORE, Plaintiffs request that the Court GRANT their Motion in Limine to Preclude Evidence under C.R.E. 401, 402, 403 and 404. DATED: October 11, 2021 Respectfully submitted, WILHITE, ROSE, MCCLURE & SAWAYA, P.C. /s/ Laura Browne Original Signature on File in Attorney’s Office Laura Browne, Attorney for Plaintiffs CERTIFICATE OF SERVICE I certify that on October 11, 2021 this PLAINTIFFS’ MOTIONS IN LIMINE TO PRECLUDE EVIDENCE UNDER C.R.E. 401, 402, 403, AND 404 was served on all parties via Colorado Court’s E-Filing to the following: Andrew W. Callahan, Esq. Julie M. Yates, Esq. WICK & TRAUTWEIN, LLC P.O. Box 2166 Fort Collins, CO 80522 Attorney for Defendant Adam Stephens, Esq. FORT COLLINS CITY ATTORNEY’S OFFICE P.O. Box 580 Fort Collins, CO 80522 Attorney for Defendant /s/ Kassandra Burival Original Signature on File in Attorney’s Office Kassandra Burival, Litigation Paralegal