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HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 061 - Pls' Resp Mil To Limit Testimony Not Support By Med ProfDISTRICT COURT OF LARIMER COUNTY, STATE OF COLORADO Court address: 201 Laporte Ave. Fort Collins, CO 80621 T: (970) 494-3500 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: 2020CV030363 Courtroom: 3C PLAINTIFF STUWARD CROSS’ RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO EXCLUDE OR LIMIT TESTIMONY NOT SUPPORTED BY MEDICAL PROFESSIONALS COMES NOW, Plaintiff Stuward Cross, through his counsel Wilhite, Rose, McClure & Sawaya, P.C., and hereby submits the following Response to Defendant’s Motion. For the following reasons and good cause, Plaintiff Cross requests Defendant’s Motion be denied. BACKGROUND Plaintiff Stuward Cross was involved in a motor vehicle collision on June 7, 2017. In this collision, Plaintiff Cross was the driver of a taxi cab that was struck by a dump truck operated by an DATE FILED: November 2, 2021 2:12 PM FILING ID: ADADC96DC311D CASE NUMBER: 2020CV30363 employee of Defendant City of Fort Collins. Plaintiff Cross sustained injuries in the motor vehicle collision, and underwent medical treatment related to those injuries. Prior to the motor vehicle collision, Plaintiff Cross did have some symptoms which were similar to those symptoms he experienced after the collision. However, Plaintiff Cross has explained in his deposition how those symptoms worsened or were aggravated by the subject collision. Plaintiff Cross intends to testify regarding the symptoms he experienced after the subject collision and how those symptoms were caused by the collision from his perspective, as the individual experiencing those symptoms. LEGAL AUTHORITY AND ANALYSIS Pursuant to C.R.E. 401, relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence.” A fact that tends to prove or disprove a fact in issue is relevant and admissible, and a fact which does nothing to help the trier of fact resolve a contested issue is irrelevant and inadmissible for any purpose. C.R.E. 401, 402; People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). C.R.E. 403 goes on to state that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, though there is a strong preference for admission. See Walter v. Hall, 940 P.2d 991, 999 (Colo. 1996) (The Colorado Rules of Evidence strongly favor the admission of evidence, and a trial court has broad discretion in deciding admissibility). Moreover, evidence that is merely unfavorable to one side does not render that evidence unfairly prejudicial. People v. Hall, 107 P.3 1073, 1079 (Colo. App. 2004). “Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.” Masters v. People, 58 P.3d 979, 1001 (Colo. 2002)). “Evidence is not ‘unfairly prejudicial’ simply because it damages a party’s case.” Hall, 107 P.3d at 1079. “All effective evidence is prejudicial in the sense of being damaging or detrimental to the party against whom it is offered.” Id. (citing Masters, 58 P.3d at 1001). Here, Defendant seeks an order in limine precluding Plaintiff Cross from testifying regarding his claimed injuries. This request should be denied because Plaintiff Cross is not claiming to be testifying as a medical expert, but simply as the individual experiencing the relevant injuries and resulting symptoms. Plaintiff Cross is uniquely qualified to testify as to his injuries as the only person experiencing them. Such testimony is highly relevant and certainly admissible in this case. Defendant cites to C.R.E. 701 in its Motion, providing the standard for expert testimony. As Defendant included in its Motion, C.R.E. 701 allows for a lay witness such Plaintiff Cross to provide testimony in the form of an opinion or inference when that opinion is “rationally based on the perception of the witness,” and “helpful to a clear understanding of the witness’ testimony or the determination of fact in issue,” as well as “not based on scientific, technical, or other specialized knowledge.” Defendant also concedes in its Motion that the plaintiffs are, of course, allowed to testify to their own symptoms experienced after the collision. It appears, therefore, that Defendant wants the Court to make an in limine order restricting the Plaintiff Cross from mentioning certain words during his testimony, like “traumatic brain injury.” It is unclear what other specific terms Defendant objects to Plaintiff Cross mentioning, and what language may cross from Plaintiff discusses his symptoms into what Defendant perceives as “medical diagnoses.” Defendant is asking the Court to issue a drastic, broad, and overly speculative sanction on Plaintiff Cross’s anticipated testimony with little basis. Furthermore, the Motion should be denied as premature. Generally, motions in limine should be limited to issues which cannot be properly addressed by contemporaneous objection at trial. Here, any issue Defendant has with any of Plaintiff Cross’s testimony can be properly addressed by contemporaneous objection at trial. Indeed, any objection will be better decided in the context of trial where the Court has a developed record. Defendant’s issues with Plaintiff Cross’s anticipated testimony are better addressed during trial if the issue so arises. Furthermore, Plaintiff Cross’s opinions are based on the underlying facts of this case, and it is for the trier of fact to decide what weight to give Plaintiff Cross’s opinions. Plaintiff Cross’s perceptions and experiences are best tested by cross-examination and presentation of contrary evidence. Here, the jury will receive a jury instruction telling them they have the power to believe, or not believe, any witness’ testimony throughout trial and to give the testimony the weight they think it deserves. In sum, there is no basis for Defendant’s requested drastic sanction of barring Plaintiff Cross from testifying regarding his own perceptions of his claimed injuries and damages in this case. Defendant’s Motion should be denied. WHEREFORE, Plaintiff Cross respectfully moves this Court to deny Defendant’s Motion in Limine to Exclude or Limit Plaintiffs’ Testimony. DATED: November 2, 2021. Respectfully submitted, WILHITE, ROSE, MCCLURE, SAWAYA & P.C. /s /Laura Browne Laura Browne, Esq. CERTIFICATE OF SERVICE I certify that on November 2, 2021 this PLAINTIFF STUWARD CROSS’ RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO EXCLUDE OR LIMIT TESTIMONY NOT SUPPORTED BY MEDICAL PROFESSIONALS was served on all parties via CCEF electronic filing or mail to the following: Andrew W. Callahan, Esq. Wick & Trautwein, LLC PO Box 2166 Fort Collins, CO 80522 Attorneys for all Defendant Andrew Stephens, Esq. Fort Collins City Attorney’s Office PO Box 580 Fort Collins, CO 80522 Katrina Richman 2027 Shorebird Drive, Apt 202 Fort Collins, CO 80525 Plaintiff /s/ Kassandra Burival Original Signature on File in Attorney’s Office Kassandra Burival, Litigation Paralegal