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ROBERT M. PETERSON (Bar No.: 100084)
COLIN C. MUNRO (Bar No.: 195520)
CHRISTOPHER J. WEBER (Bar No.: 233998)
CARLSON, CALLADINE & PETERSON LLP
353 Sacramento Street, 16th Floor ELECTRONICALLY
San Francisco, CA 94111 FILED
Telephone: (415) 391-3911 Superior Court of California,
Facsimile: (415) 391-3898 County of San Francisco
MAR 09 2015
Attorneys for Defendants Clerk of the Court
TAXI EQUIPMENT LEASING LLC and YELLOW CAB BY: ANNA TORRES
COOPERATIVE, INC. Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
IDA CRISTINA CRUZ FUA, Case No.: CGC-11-515542
inti Consolidated with CGC-12-519794 and
Plaintiff CGC-13-529705
v- MIL NO. 8:
JOEL ENRIQUE ANDINO SANCHEZ, and DEFENDANTS TAXI EQUIPMENT
individual; CAROLINE MILLER, an LEASING LLC AND YELLOW CAB
individual; TAX! EQUIPMENT LEASING COOPERATIVE, EINC.’S MOTION IN
LLC, a Limited Liability Company; SAN LIMINE NO.8 VO EXCLUDE 5
FRANCISCO INDEPENDENT TAXI BIOMECHANICAL EXPERT
ASSOCIATION, a Corporation, YELLOW ELIZABETH RAPHAEL REGARDING
CAB COOPERATIVE, INC., a Corporation; AUTOMOTIVE EVENT DATA
and DOES 1 through 50, Inclusive, RECORDER
Date: March 9, 2015
Defendants. Time: 9:30 a.m,
Dept.: 206
Judge:
I INTRODUCTION AND SUMMARY OF ARGUMENT
Plaintiff's retained biomechanical expert, Dr. Elizabeth Raphael, will seek to offer an
opinion regarding the automotive Event Data Recorder (“EDR”)! installed in the Nissan Altima
| A device installed in some automobiles to record information related to vehicle crashes or
accidents.
1
DEFENDANTS’ MIL No. 8 TO EXCLUDE TESTIMONY BY PLAINTIFF’S EXPERT RAPHAELeo fe YW A we Rh WwW Dm
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taxi at issue in this case, despite having no expertise on the design of EDRs or the Altima’s
electronics system. There is no basis for Dr. Raphael’s opinion, and accordingly Defendants move
to exclude Dr. Raphael’s testimony regarding why the EDR may not have had accident data
recorded on it after the accident. There is simply nothing in the record that would support such
contentions by Dr. Raphael.
th. ARGUMENT
A. Dr. Raphael Offers an Opinion Regarding the Lack of Data on the
EDR, Despite Not Having Any Basis for Doing So.
When deposed, Dr. Raphael claimed that she was “familiar with the process of EDR
downloads and the information that’s available on an EDR” and that she “expected there to be
downloadable data on that EDR .. . .” (Declaration of Colin Munro Ex. A at p. 85). She also
claimed that undefined “testing” of the “electronic system governing” the EDR would reveal “if
that was the reason for no downloadable information,” and that such testing was not done. Ud at
pp. 85-86). She believes that because the Nissan Altima’s front airbags deployed the car had
“enough power to allow sensing computation and signal and deployment of the bag,” and that “{i]f
you have enough power to sense, compute, signal and fire the bags, there’s going to be some
recording of at ieast the beginning of that crash sequence on an EDR. It shouldn’t be completely
devoid of information.” (id. at pp. 86, 88). Dr. Raphael asserted that it was “possible” that “the
reason for their being not material on the EDR was because it was removed from the vehicle.” (id.
at p. 84).
However, despite her willingness to speculate as to the reason for the lack of downloadable
data on the Altima’s EDR, Dr. Raphael admitted that she is not an expert “in the design of an
EDR.” (id. at p. 87). She admitted that she had not spoken to anyone at Nissan “about the design
of this EDR and the interface between the EDR and the power system in the vehicle.” (/d. at pp.
88-89). She could “not think of’ ever having taken any course work or attended any classes
“regarding the electronic system of a Nissan Ultima.” (/d at p. 93). When asked “whether you
have the opinion that the reason the EDR docs not have any data is because it was removed from
the vehicle,” Dr. Raphael stated “I don’t know.” (Id. at p. 84).
2
DEFENDANTS’ MIL No. 8 TO EXCLUDE TESTIMONY BY PLAINTIEF’S EXPERT RAPHAELOo Oo DM KO A RB BD DD me
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B Expert Opinion With No Foundation Other Than Speculation, Such as
Dr. Raphael’s Opinion Regarding the EDR, Must Be Excluded.
An expert must base his or her opinion on information considered reliable for the opinion
to be admissible, and where an expert’s opinion is based on assumed and/or conjectural
information, it does not rise to the level of admissible evidence. Bushling v. Fremont Medical
Center (2004) 117 Cal.App.4th 493, 510 (“(E]xpert opinion may not be based on assumptions of
facts that are without evidentiary support or based on factors that are speculative or conjectural,
for then the opinion has no evidentiary value and does not assist the trier of fact.”); Jn re
Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564 (“[A]n expert opinion based on
speculation or conjecture is inadmissible.”), Borger v. Dept. of Motor Vehicles (2011) 192
Cal.App.4th 1118, 1122 (“Where an expert bases his conclusion upon assumptions which are not
supported by the record, upon matters which are not reasonably relied upon by other experts, or
upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary
value.” (internal quotations omitted)). Under Evid. Code § 803 “[i]he court may, and_upon
objection shall, exclude testimony in the form of an opinion that is based in whole or in significant
part on matter that is not a proper basis for such an opinion.” Emphasis added.
Here, despite not having any expertise in the design of EDRs, any communications with
Nissan regarding the interface between the EDR and the Altima’s power system, nor any course
work on the car’s electronic system, Plaintiff intends to present testimony by Dr. Raphael on the
very specific issue of what aspect of the design of the Nissan Altima EDR installed in the subject
taxi caused the EDR to not contain any downloadable data on the accident. Plaintiff intends to
offer testimony by Dr. Raphael insinuating that the reason the EDR did not have downloadable
data was the manner in which it was removed from the vehicle, rather than as a result of the
EDR’s design in the context of the way in which the accident occurred, even though she herself
admits that she doesn’t know whether the reason the EDR does not have any data is because it was
removed from the vehicle.
Because Dr. Raphael has no expertise in the design of the EDR, or the effect of that design
on what may or may not cause an EDR to have downloadable data following an accident, or the
3
DEFENDANTS’ MIL No. 8 TO EXCLUDE TESTIMONY BY PLAINTIFF’S EXPERT RAPHAEL2S Oe YM DA HA BR YW Dom
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effect of that design on what effect removal of the EDR might have on downloadable data, her
testimony is entirely speculation. She is simply asserting a lay person’s belief, rather than a
cognizable expert opinion, and accordingly her testimony must be excluded on the EDR.
fii, CONCLUSION
Defendants urge the Court to exclude Dr. Raphael’s testimony regarding why the EDR
may not have had certain data recorded on it and potential reasons for the state of data on the EDR
after the accident. Allowing such testimony would present an expert opinion regarding the design
of the EDR and the Nissan Altima’s electronic system, proffered by an individual having none of
the expertise necessary to offer such an opinion.
Dated: March 9, 2015 CARLSON, CALLADINE & PETERSON
By: — Fe @
COLIN C. MUNRO
Attomeys for Defendants
TAXI EQUIPMENT LEASING LLC and
YELLOW CAB COOPERATIVE, INC.
4
DEFENDANTS’ MIL No. 8 ro EXCLUDE TESTIMONY BY PLAINTIFF’S Expert RAPHAELcD KD A BR YN
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DECLARATION OF CHRISTOPHER J. WEBER
1, Christopher J. Weber, declare as follows:
I am an attomey licensed to practice before all courts of the State of California and am an
associate with the law firm of Carlson, Calladine & Peterson, attorneys of record for defendants
Yellow Cab Cooperative, Inc. and Taxi Equipment Leasing, LLC. Except as otherwise indicated,
I know the following facts from personal knowledge and if called upon as a witness, F could and
would competently testify thereto under oath.
L Attached hereto as Exhibit “A” is a true and correct copy of selected excerpts from
the rough draft of the March 4, 2015 deposition Dr. Elizabeth Raphael. The certified transcript
from this deposition was not available as of the filing of Defendants’ Motion in Limine No. 8, and
Defendants will supplement their filing with the relevant portion of Dr. Raphael’s certified
deposition transcript as soon as it is available.
I declare under penalty of perjury, that the foregoing is true and correct and that this
declaration was executed on this 9th day of March 2015, at San Francisco, California.
Christopher J. Weber
5
DEFENDANTS’ MIL No. 8 TO EXCLUDE TESTIMONY BY PLAINTIFF’S EXPERT RAPHAELEXHIBIT Araphael EXPERT_1.txt
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
ROUGH DRAFT ROUGH DRAFT ROUGH DRAFT
IMPORTANT INFORMATION! ! !
This rough draft transcript is provided for your
immediate review of the proceedings and is not provided
for, nor meant to be used or cited in any type of legal
proceedings.
JHE VIDEOGRAPHER: This is tape number one to the
videotaped deposition of Elizabeth Raphael in the matter
of Ida Cristina Cruz Fua versus Joel Enrique Andino
Sanchez, et al, being heard before the Superior court of
the State of California, in and for the county of San
Francisco, case number Cc. G C. 11515542. This deposition
is being held at 702 Marshall Street, Redwood city,
California, on March 4th, 2015, at 1:17 p.m,
My name is Warren Nguygen and I'm the
videographer, The Court Reporter is Joan Cesano.
Counsel will you please introduce yourselves and
your affiliations.
MR. MUNRO: This is Colin Munro for defendant
Lucas -~- defendant Yellow Cab and Taxi equipment leasing.
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
Page 1zg
raphael EXPERT_1.txt
A Umm -- and we don't have any EDR download
Q You do have a download, don't you?
A Well, the there was no information to be
downloaded is my understanding and that the E D R had been
removed from the vehicle. I wasn't aware it was being
taken, I wasn't -- I had no idea that it was being stored
away from the vehicle and then when the attempt was made
to download jt there was no information on it.
Q Do you have any opinion that the reason the E DR
had no data is because of anything done in terms of
removing it from the vehicle?
A That's certainly possible, I have no idea. I
wasn't there when it was removed, nobody told me it was
going to be removed.
Q And again the question was: Do you have any
opinion that the reason for their being no material on the
E DR was because it was removed from the vehicle?
A I said that's possible.
Q I'm not asking if it's possible. I'm asking
whether you have the opinion that the reason the E DR
does not have any data is because it was removed from the
vehicle?
A I don't know.
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFEED
MR. EMANUEL: The question as phrased is
ambiguous.
MR. MUNRO: I've got no questions. Thank you.
MR, EMANUEL: Maybe I'l] just ask some questions.
Page 84raphael EXPERT_1.txt
BY MR. EMANUEL:
Q. what information -- strike that. I'm going to ask
you at trial what your experience is in terms of one's
ability to obtain E D R data after a severe collision such
as the one experienced in this case. Can you tell us about
that?
A I've been involved in dozens and dozens of --
actually hundreds of automotive cases and in those there
are E D R downloads. I'm familiar with the process of E D
R downloads and the information that's available on an E D
R.
Q Did you expect after you knew there was an EDR
in the vehicle at time of the incident that the E DR data
would be downloadable?
A I expected there to be downloadable data on that
EDR yes.
Q@ Can you think of -- strike that.
MR. MUNRO: Can you give me a continuing
objection just on the basis that this was not -- a topic
of testimony for which Ms. -- for which Dr. Raphael's
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
disclosed?
MR. EMANUEL: I'11 give you a continuing
objection on that.
MR. MUNRO: Thank you.
MR. EMANUEL:
Q Do you have -- strike that. Do you know whether
the electronic system governing E D R in this case was
Page 85raphael EXPERT_1. txt
ever tested?
A As far as I know it was not.
Q What would be the relevance of doing a testing of
the electronic system governing the — DR in this case?
A Then we'd know if the power had been cut to the £
DR if that was the reason for no downloadable
information.
Q Bo you have an opinion as to whether the power
was, in fact, cut to the — D R at the time of the
incident?
A I'm not aware of any power being cut to the E D
Q In terms of front airbag deployment in this case,
do you have an opinion as to what if anything it means
that the front airbag deployed with regard to the E D R?
A Well we know that the airbag module got a command
to fire from the electronics, so the sensors picked up the
information that the impact was severe enough to need an
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
ESQUIRE DEPOSITION SOLUTIONS ~ UNEDITED AND UNCERTIFIED
air bag deployment, the computer then sent the signal to
the airbag module to deploy and the bags did deploy so
there was enough power to allow sensing computation and
signal and deployment of the bag.
Q. And in terms of your inability to conduct a fully
comprehensive inspection an evaluation in this case, is
the E DR lack of data part of what prevented you from
doing that?
A That's true.
MR. EMANUEL: That's all I have.
Page 86raphael EXPERT_1.txt
MR. MUNRO: Are you an expert in the design of
Nissan Ultima's E D R?
A TI am an expert in biomechanics and occupant
kinematics not in the design of an E DR.
Q. All right. Have you ever dealt with the design
of an ED R installed in a Nissan Ultima?
A Well, I certainly had cases that involved Nissan
ultimas and -- the E D R and bag deployments he is,
absolutely.
Q That wasn't my question.
Have you ever dealt with the design of an EDR
as installed in a Nissan Ultima?
MR, EMANUEL: Vague and ambiguous.
A Insofar as it effects the biomechanics and
kinematics and occupants in a crash with that, yes, I
ESQUIRE DEPOSITION SOLUTIONS ~ UNEDITED AND UNCERTIFIED
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
have.
Q All right. Have you ever investigated whether an
—E DR properly designed, properly installed in a Nissan
Ultima would have the capacity to fire the airbags and yet
be unable to download data from an incident?
A Those are two separate things, whether -- the E D
R itself doesn't download data, the E D R records the
data, the person who comes long later as investigator
downloads the data.
Q Thank you. Have you ever investigated whether an
E DR such that's installed in the Nissan Ultima, would
have the -- either from a design or from the actual
Page 87raphael EXPERT_1.txt
incident, the ability to fire the airbags but not be able
to record data from the incident?
A It's my understanding that the EDR would at least
record some data before the data recording stopped. If you
have enough power to sense, compute, signal and fire the
bags, there's going to be some recording of at least the
beginning of that crash sequence on an E DR. It shouldn't
be completely devoid of information.
Q And have you ever had the issue in a case where
airbags have deployed and yet there has been no data
recorded on the & D R?
A No.
Q Have you ever had situations where an E DR has
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
had no data on it?
A Well certainly there are situations where an
investigator in their attemtp to download data have erased
data.
Q Do you have any information that anyone in this
case attempted to download data and thereby wiped the
data?
MR. EMANUEL: Vague and ambiguous as phrased.
A All I know there is no data on this EDR. I'm
not aware of any other attempt to download the data.
BY MR. MUNRO:
Q Have you spoken to anyone at Nissan about the
design of this ED R and the interface between the EDR
and the power system in the vehicle?
MR. EMANUEL: in this particular vehicle?
Page 88raphael EXPERT_1. txt
MR. MUNRO: Yes.
MR. EMANUEL: Okay.
A For this case.
BY MR. MUNRO: Yes.
A No.
Q Have you spoken with anyone at Nissan regarding
the ability of the — DR, a Nissan Ultima such as this
vehicle to record data or not record data depending upon
the power supply?
MR. EMANUEL: Vague and ambiguous.
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
A Have IT spoken to Nissan.
BY MR. MUNRO:
Yes.
A i have -- I have spoken to engineers at Nissan
about the ED Rs Nissan Ultima's in previous cases yes.
Q And have any of those conversations involved the
issue as to what the impact of a loss of power would be
and as it would relate to the timing of that between the
firing of a seat belt -- an airbag and then the ability of
that recorder to nevertheless record data or not?
MR. MUNRO?
Q Want me to try again?
A I'm not sure I got your question.
BY MR. MUNRO:
Q Have you ever spoken to in this circumstance,
this issue of we know the airbags fire, we know there's no
data, have you ever spoken to Nissan about that situation
Page 89raphael EXPERT_1. txt
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
ESQUIRE DEPOSITION SOLUTIONS ~ UNEDITED AND UNCERTIFIED
A What do you mean?
MR. SHUREEN:.
Q Have you ever worked on any part of the
electronic system of a Nissan Ultima?
MR. EMANUEL: Same objection.
A You mean like a mechanic?
BY MR. SHUREEN:
Yeah.
Let's see -- at one time I owned a Nissan Maxima
and I did a lot of work on that Maxima. I don't remember
if I ever did any work on the electronics of the Maxima
and it wasn't an Ultima, so you know, other than that, 1
haven't really worked on a Nissan.
Q vid you ever take any course work or attend any
classes relating to the electronic system of a Nissan
Ultima?
A Not that I can think of.
Q Do you remember ever doing any studies of the
electronic system of a Nissan Ultima?
A I'm sure I've looked at the electronic system of
a Nissan Ultima, yes, sir.
Q when did you last look at that?
A I don't know. I've had cases involving Nissan
Ultimas and I’ve looked at wiring diagrams for Nissan
Ultimas.
ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED
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PROOF OF SERVICE
Ida Cristina Cruz Fua v. Joel Enrique Andino Sanchez, et al.
San Francisco Superier Court Case No. CGC-11-515542
Tam employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is 353 Sacramento Street, 16th Floor,
San Francisco, California 94111.
On March 9, 2015, I served the following document: DEFENDANTS TAXI
EQUIPMENT LEASING, LLC AND YELLOW CAB COOPERATIVE, INC.’S MOTION
IN LIMINE NO. 8 TO EXCLUDE TESTIMONY BY PLAINTIFF’S BIOMECHANICAL
EXPERT ELIZABETH RAPHAEL REGARDING AUTOMOTIVE EVENT DATA
RECORDER in the manner indicated below, on the interested parties in said action at the
following addresses (including fax numbers and email addresses, if applicable) as follows:
Todd P. Emanuel, Esq. Telephone: (650) 369-8900
Mark D. Rosenberg, Esq. Facsimile: (650) 369-8999
Emanuel Law Group Email: todd@TEinjurylaw.com
702 Marshall Street, Suite 400 Email: mark@TEinjurylaw.com
Redwood City, CA 94063 Attorneys for Plaintiff Fua
D. Douglas Shureen, Esq. Telephone: (707) 525-5400
MeMillian & Shureen LLP Facsimile: (707) 576-7955
50 Santa Rosa Avenue, Suite 200 Email: doug.shureen@memillanshureen.com
Santa Rosa, CA. 95404 Attorneys for Defendant Joel Enrique Andine
Sanchez
Gregory H. McCormick, Esq. Telephone: (510) 444-6800
Bumham Brown Facsimile: (510) 835-6666 *
1901 Harrison Street, 14th Floor Email: gmecormick@burnhainbrown.com
Oakland, CA 94612 Attorneys for Defendant Alan DaSilva and
San Francisco Independent Taxi Assn.
Mitchell E. Green, Esq. Telephone: (805) 823-0915
Law Offices of Mitchell E. Green Facsimile: (805) 823-0916
P. O. Box 630550 Email: mitchgreenlaw@aol.com
Simi Valley, CA 93063 Attorneys for Plaintiff Alistate Insurance Co.
Robert S. Aaron, Esq. Telephone: (415) 438-7801
Aaron & Wilson, LLP Facsimile: (415) 438-7808
150 Post Street, Suite 400 Email: rsaaron(@aaron-wilson.com
San Francisco, CA 94108 Co-counsel for Defendants Taxi Equipment
and Yellow Cab Cooperative, Inc.
& BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a Court Order or an
agreement of the parties fo accept service by e-mail or clectronic transmission, I caused
the déctiments to be sent to the-persons at-the-email addresses listed. I did not receive,
within a reasonable time-after the transmission, any electronic message or other indication
that the transmission was unsuccessful,
PROOF OF SERVICEOC Oe YN A A PY YD
BP RNY BM YN NN De ee
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on March 9, 2015, at San Francisco, California.
oy yi
Ct bate
SHARI L. HIIBEL
PROOF OF SERVICE
Preview
Cc fF SV DB HW F&F BW HR NR NR DW NR KR NR RD em ae Se NY A HW FF YH HN = SF OD we TD DA Hh RB WHR = SG ROBERT M. PETERSON (Bar No.: 100084) COLIN C. MUNRO (Bar No.: 195520) CHRISTOPHER J. WEBER (Bar No.: 233998) CARLSON, CALLADINE & PETERSON LLP 353 Sacramento Street, 16th Floor ELECTRONICALLY San Francisco, CA 94111 FILED Telephone: (415) 391-3911 Superior Court of California, Facsimile: (415) 391-3898 County of San Francisco MAR 09 2015 Attorneys for Defendants Clerk of the Court TAXI EQUIPMENT LEASING LLC and YELLOW CAB BY: ANNA TORRES COOPERATIVE, INC. Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO IDA CRISTINA CRUZ FUA, Case No.: CGC-11-515542 inti Consolidated with CGC-12-519794 and Plaintiff CGC-13-529705 v- MIL NO. 8: JOEL ENRIQUE ANDINO SANCHEZ, and DEFENDANTS TAXI EQUIPMENT individual; CAROLINE MILLER, an LEASING LLC AND YELLOW CAB individual; TAX! EQUIPMENT LEASING COOPERATIVE, EINC.’S MOTION IN LLC, a Limited Liability Company; SAN LIMINE NO.8 VO EXCLUDE 5 FRANCISCO INDEPENDENT TAXI BIOMECHANICAL EXPERT ASSOCIATION, a Corporation, YELLOW ELIZABETH RAPHAEL REGARDING CAB COOPERATIVE, INC., a Corporation; AUTOMOTIVE EVENT DATA and DOES 1 through 50, Inclusive, RECORDER Date: March 9, 2015 Defendants. Time: 9:30 a.m, Dept.: 206 Judge: I INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff's retained biomechanical expert, Dr. Elizabeth Raphael, will seek to offer an opinion regarding the automotive Event Data Recorder (“EDR”)! installed in the Nissan Altima | A device installed in some automobiles to record information related to vehicle crashes or accidents. 1 DEFENDANTS’ MIL No. 8 TO EXCLUDE TESTIMONY BY PLAINTIFF’S EXPERT RAPHAELeo fe YW A we Rh WwW Dm N N NY NR YR NM NR NOY OS ee _ e® §Saask & 8S F&F Se ARZAREBE ZS taxi at issue in this case, despite having no expertise on the design of EDRs or the Altima’s electronics system. There is no basis for Dr. Raphael’s opinion, and accordingly Defendants move to exclude Dr. Raphael’s testimony regarding why the EDR may not have had accident data recorded on it after the accident. There is simply nothing in the record that would support such contentions by Dr. Raphael. th. ARGUMENT A. Dr. Raphael Offers an Opinion Regarding the Lack of Data on the EDR, Despite Not Having Any Basis for Doing So. When deposed, Dr. Raphael claimed that she was “familiar with the process of EDR downloads and the information that’s available on an EDR” and that she “expected there to be downloadable data on that EDR .. . .” (Declaration of Colin Munro Ex. A at p. 85). She also claimed that undefined “testing” of the “electronic system governing” the EDR would reveal “if that was the reason for no downloadable information,” and that such testing was not done. Ud at pp. 85-86). She believes that because the Nissan Altima’s front airbags deployed the car had “enough power to allow sensing computation and signal and deployment of the bag,” and that “{i]f you have enough power to sense, compute, signal and fire the bags, there’s going to be some recording of at ieast the beginning of that crash sequence on an EDR. It shouldn’t be completely devoid of information.” (id. at pp. 86, 88). Dr. Raphael asserted that it was “possible” that “the reason for their being not material on the EDR was because it was removed from the vehicle.” (id. at p. 84). However, despite her willingness to speculate as to the reason for the lack of downloadable data on the Altima’s EDR, Dr. Raphael admitted that she is not an expert “in the design of an EDR.” (id. at p. 87). She admitted that she had not spoken to anyone at Nissan “about the design of this EDR and the interface between the EDR and the power system in the vehicle.” (/d. at pp. 88-89). She could “not think of’ ever having taken any course work or attended any classes “regarding the electronic system of a Nissan Ultima.” (/d at p. 93). When asked “whether you have the opinion that the reason the EDR docs not have any data is because it was removed from the vehicle,” Dr. Raphael stated “I don’t know.” (Id. at p. 84). 2 DEFENDANTS’ MIL No. 8 TO EXCLUDE TESTIMONY BY PLAINTIEF’S EXPERT RAPHAELOo Oo DM KO A RB BD DD me MON NR NR RR RR Nm mm me CM AO OH f& BB MB & OS 6 Oe KD BH & WB ND & B Expert Opinion With No Foundation Other Than Speculation, Such as Dr. Raphael’s Opinion Regarding the EDR, Must Be Excluded. An expert must base his or her opinion on information considered reliable for the opinion to be admissible, and where an expert’s opinion is based on assumed and/or conjectural information, it does not rise to the level of admissible evidence. Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 (“(E]xpert opinion may not be based on assumptions of facts that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact.”); Jn re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564 (“[A]n expert opinion based on speculation or conjecture is inadmissible.”), Borger v. Dept. of Motor Vehicles (2011) 192 Cal.App.4th 1118, 1122 (“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.” (internal quotations omitted)). Under Evid. Code § 803 “[i]he court may, and_upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.” Emphasis added. Here, despite not having any expertise in the design of EDRs, any communications with Nissan regarding the interface between the EDR and the Altima’s power system, nor any course work on the car’s electronic system, Plaintiff intends to present testimony by Dr. Raphael on the very specific issue of what aspect of the design of the Nissan Altima EDR installed in the subject taxi caused the EDR to not contain any downloadable data on the accident. Plaintiff intends to offer testimony by Dr. Raphael insinuating that the reason the EDR did not have downloadable data was the manner in which it was removed from the vehicle, rather than as a result of the EDR’s design in the context of the way in which the accident occurred, even though she herself admits that she doesn’t know whether the reason the EDR does not have any data is because it was removed from the vehicle. Because Dr. Raphael has no expertise in the design of the EDR, or the effect of that design on what may or may not cause an EDR to have downloadable data following an accident, or the 3 DEFENDANTS’ MIL No. 8 TO EXCLUDE TESTIMONY BY PLAINTIFF’S EXPERT RAPHAEL2S Oe YM DA HA BR YW Dom met mt eo RN A he F&F BY NN &— SF © @m SN KH Hh RB Ye NY KF SS effect of that design on what effect removal of the EDR might have on downloadable data, her testimony is entirely speculation. She is simply asserting a lay person’s belief, rather than a cognizable expert opinion, and accordingly her testimony must be excluded on the EDR. fii, CONCLUSION Defendants urge the Court to exclude Dr. Raphael’s testimony regarding why the EDR may not have had certain data recorded on it and potential reasons for the state of data on the EDR after the accident. Allowing such testimony would present an expert opinion regarding the design of the EDR and the Nissan Altima’s electronic system, proffered by an individual having none of the expertise necessary to offer such an opinion. Dated: March 9, 2015 CARLSON, CALLADINE & PETERSON By: — Fe @ COLIN C. MUNRO Attomeys for Defendants TAXI EQUIPMENT LEASING LLC and YELLOW CAB COOPERATIVE, INC. 4 DEFENDANTS’ MIL No. 8 ro EXCLUDE TESTIMONY BY PLAINTIFF’S Expert RAPHAELcD KD A BR YN . 10 il 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 DECLARATION OF CHRISTOPHER J. WEBER 1, Christopher J. Weber, declare as follows: I am an attomey licensed to practice before all courts of the State of California and am an associate with the law firm of Carlson, Calladine & Peterson, attorneys of record for defendants Yellow Cab Cooperative, Inc. and Taxi Equipment Leasing, LLC. Except as otherwise indicated, I know the following facts from personal knowledge and if called upon as a witness, F could and would competently testify thereto under oath. L Attached hereto as Exhibit “A” is a true and correct copy of selected excerpts from the rough draft of the March 4, 2015 deposition Dr. Elizabeth Raphael. The certified transcript from this deposition was not available as of the filing of Defendants’ Motion in Limine No. 8, and Defendants will supplement their filing with the relevant portion of Dr. Raphael’s certified deposition transcript as soon as it is available. I declare under penalty of perjury, that the foregoing is true and correct and that this declaration was executed on this 9th day of March 2015, at San Francisco, California. Christopher J. Weber 5 DEFENDANTS’ MIL No. 8 TO EXCLUDE TESTIMONY BY PLAINTIFF’S EXPERT RAPHAELEXHIBIT Araphael EXPERT_1.txt ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED ROUGH DRAFT ROUGH DRAFT ROUGH DRAFT IMPORTANT INFORMATION! ! ! This rough draft transcript is provided for your immediate review of the proceedings and is not provided for, nor meant to be used or cited in any type of legal proceedings. JHE VIDEOGRAPHER: This is tape number one to the videotaped deposition of Elizabeth Raphael in the matter of Ida Cristina Cruz Fua versus Joel Enrique Andino Sanchez, et al, being heard before the Superior court of the State of California, in and for the county of San Francisco, case number Cc. G C. 11515542. This deposition is being held at 702 Marshall Street, Redwood city, California, on March 4th, 2015, at 1:17 p.m, My name is Warren Nguygen and I'm the videographer, The Court Reporter is Joan Cesano. Counsel will you please introduce yourselves and your affiliations. MR. MUNRO: This is Colin Munro for defendant Lucas -~- defendant Yellow Cab and Taxi equipment leasing. ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED Page 1zg raphael EXPERT_1.txt A Umm -- and we don't have any EDR download Q You do have a download, don't you? A Well, the there was no information to be downloaded is my understanding and that the E D R had been removed from the vehicle. I wasn't aware it was being taken, I wasn't -- I had no idea that it was being stored away from the vehicle and then when the attempt was made to download jt there was no information on it. Q Do you have any opinion that the reason the E DR had no data is because of anything done in terms of removing it from the vehicle? A That's certainly possible, I have no idea. I wasn't there when it was removed, nobody told me it was going to be removed. Q And again the question was: Do you have any opinion that the reason for their being no material on the E DR was because it was removed from the vehicle? A I said that's possible. Q I'm not asking if it's possible. I'm asking whether you have the opinion that the reason the E DR does not have any data is because it was removed from the vehicle? A I don't know. ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFEED MR. EMANUEL: The question as phrased is ambiguous. MR. MUNRO: I've got no questions. Thank you. MR, EMANUEL: Maybe I'l] just ask some questions. Page 84raphael EXPERT_1.txt BY MR. EMANUEL: Q. what information -- strike that. I'm going to ask you at trial what your experience is in terms of one's ability to obtain E D R data after a severe collision such as the one experienced in this case. Can you tell us about that? A I've been involved in dozens and dozens of -- actually hundreds of automotive cases and in those there are E D R downloads. I'm familiar with the process of E D R downloads and the information that's available on an E D R. Q Did you expect after you knew there was an EDR in the vehicle at time of the incident that the E DR data would be downloadable? A I expected there to be downloadable data on that EDR yes. Q@ Can you think of -- strike that. MR. MUNRO: Can you give me a continuing objection just on the basis that this was not -- a topic of testimony for which Ms. -- for which Dr. Raphael's ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED disclosed? MR. EMANUEL: I'11 give you a continuing objection on that. MR. MUNRO: Thank you. MR. EMANUEL: Q Do you have -- strike that. Do you know whether the electronic system governing E D R in this case was Page 85raphael EXPERT_1. txt ever tested? A As far as I know it was not. Q What would be the relevance of doing a testing of the electronic system governing the — DR in this case? A Then we'd know if the power had been cut to the £ DR if that was the reason for no downloadable information. Q Bo you have an opinion as to whether the power was, in fact, cut to the — D R at the time of the incident? A I'm not aware of any power being cut to the E D Q In terms of front airbag deployment in this case, do you have an opinion as to what if anything it means that the front airbag deployed with regard to the E D R? A Well we know that the airbag module got a command to fire from the electronics, so the sensors picked up the information that the impact was severe enough to need an ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED ESQUIRE DEPOSITION SOLUTIONS ~ UNEDITED AND UNCERTIFIED air bag deployment, the computer then sent the signal to the airbag module to deploy and the bags did deploy so there was enough power to allow sensing computation and signal and deployment of the bag. Q. And in terms of your inability to conduct a fully comprehensive inspection an evaluation in this case, is the E DR lack of data part of what prevented you from doing that? A That's true. MR. EMANUEL: That's all I have. Page 86raphael EXPERT_1.txt MR. MUNRO: Are you an expert in the design of Nissan Ultima's E D R? A TI am an expert in biomechanics and occupant kinematics not in the design of an E DR. Q. All right. Have you ever dealt with the design of an ED R installed in a Nissan Ultima? A Well, I certainly had cases that involved Nissan ultimas and -- the E D R and bag deployments he is, absolutely. Q That wasn't my question. Have you ever dealt with the design of an EDR as installed in a Nissan Ultima? MR, EMANUEL: Vague and ambiguous. A Insofar as it effects the biomechanics and kinematics and occupants in a crash with that, yes, I ESQUIRE DEPOSITION SOLUTIONS ~ UNEDITED AND UNCERTIFIED ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED have. Q All right. Have you ever investigated whether an —E DR properly designed, properly installed in a Nissan Ultima would have the capacity to fire the airbags and yet be unable to download data from an incident? A Those are two separate things, whether -- the E D R itself doesn't download data, the E D R records the data, the person who comes long later as investigator downloads the data. Q Thank you. Have you ever investigated whether an E DR such that's installed in the Nissan Ultima, would have the -- either from a design or from the actual Page 87raphael EXPERT_1.txt incident, the ability to fire the airbags but not be able to record data from the incident? A It's my understanding that the EDR would at least record some data before the data recording stopped. If you have enough power to sense, compute, signal and fire the bags, there's going to be some recording of at least the beginning of that crash sequence on an E DR. It shouldn't be completely devoid of information. Q And have you ever had the issue in a case where airbags have deployed and yet there has been no data recorded on the & D R? A No. Q Have you ever had situations where an E DR has ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED had no data on it? A Well certainly there are situations where an investigator in their attemtp to download data have erased data. Q Do you have any information that anyone in this case attempted to download data and thereby wiped the data? MR. EMANUEL: Vague and ambiguous as phrased. A All I know there is no data on this EDR. I'm not aware of any other attempt to download the data. BY MR. MUNRO: Q Have you spoken to anyone at Nissan about the design of this ED R and the interface between the EDR and the power system in the vehicle? MR. EMANUEL: in this particular vehicle? Page 88raphael EXPERT_1. txt MR. MUNRO: Yes. MR. EMANUEL: Okay. A For this case. BY MR. MUNRO: Yes. A No. Q Have you spoken with anyone at Nissan regarding the ability of the — DR, a Nissan Ultima such as this vehicle to record data or not record data depending upon the power supply? MR. EMANUEL: Vague and ambiguous. ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED A Have IT spoken to Nissan. BY MR. MUNRO: Yes. A i have -- I have spoken to engineers at Nissan about the ED Rs Nissan Ultima's in previous cases yes. Q And have any of those conversations involved the issue as to what the impact of a loss of power would be and as it would relate to the timing of that between the firing of a seat belt -- an airbag and then the ability of that recorder to nevertheless record data or not? MR. MUNRO? Q Want me to try again? A I'm not sure I got your question. BY MR. MUNRO: Q Have you ever spoken to in this circumstance, this issue of we know the airbags fire, we know there's no data, have you ever spoken to Nissan about that situation Page 89raphael EXPERT_1. txt ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED ESQUIRE DEPOSITION SOLUTIONS ~ UNEDITED AND UNCERTIFIED A What do you mean? MR. SHUREEN:. Q Have you ever worked on any part of the electronic system of a Nissan Ultima? MR. EMANUEL: Same objection. A You mean like a mechanic? BY MR. SHUREEN: Yeah. Let's see -- at one time I owned a Nissan Maxima and I did a lot of work on that Maxima. I don't remember if I ever did any work on the electronics of the Maxima and it wasn't an Ultima, so you know, other than that, 1 haven't really worked on a Nissan. Q vid you ever take any course work or attend any classes relating to the electronic system of a Nissan Ultima? A Not that I can think of. Q Do you remember ever doing any studies of the electronic system of a Nissan Ultima? A I'm sure I've looked at the electronic system of a Nissan Ultima, yes, sir. Q when did you last look at that? A I don't know. I've had cases involving Nissan Ultimas and I’ve looked at wiring diagrams for Nissan Ultimas. ESQUIRE DEPOSITION SOLUTIONS - UNEDITED AND UNCERTIFIED Page 93oO 2 Oe BR DR OH BR RB Nm N MN NY NY YW HD NN Rm eee ou A mW & BN KF SG OD wm SKN HR BR WH ON PROOF OF SERVICE Ida Cristina Cruz Fua v. Joel Enrique Andino Sanchez, et al. San Francisco Superier Court Case No. CGC-11-515542 Tam employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action. My business address is 353 Sacramento Street, 16th Floor, San Francisco, California 94111. On March 9, 2015, I served the following document: DEFENDANTS TAXI EQUIPMENT LEASING, LLC AND YELLOW CAB COOPERATIVE, INC.’S MOTION IN LIMINE NO. 8 TO EXCLUDE TESTIMONY BY PLAINTIFF’S BIOMECHANICAL EXPERT ELIZABETH RAPHAEL REGARDING AUTOMOTIVE EVENT DATA RECORDER in the manner indicated below, on the interested parties in said action at the following addresses (including fax numbers and email addresses, if applicable) as follows: Todd P. Emanuel, Esq. Telephone: (650) 369-8900 Mark D. Rosenberg, Esq. Facsimile: (650) 369-8999 Emanuel Law Group Email: todd@TEinjurylaw.com 702 Marshall Street, Suite 400 Email: mark@TEinjurylaw.com Redwood City, CA 94063 Attorneys for Plaintiff Fua D. Douglas Shureen, Esq. Telephone: (707) 525-5400 MeMillian & Shureen LLP Facsimile: (707) 576-7955 50 Santa Rosa Avenue, Suite 200 Email: doug.shureen@memillanshureen.com Santa Rosa, CA. 95404 Attorneys for Defendant Joel Enrique Andine Sanchez Gregory H. McCormick, Esq. Telephone: (510) 444-6800 Bumham Brown Facsimile: (510) 835-6666 * 1901 Harrison Street, 14th Floor Email: gmecormick@burnhainbrown.com Oakland, CA 94612 Attorneys for Defendant Alan DaSilva and San Francisco Independent Taxi Assn. Mitchell E. Green, Esq. Telephone: (805) 823-0915 Law Offices of Mitchell E. Green Facsimile: (805) 823-0916 P. O. Box 630550 Email: mitchgreenlaw@aol.com Simi Valley, CA 93063 Attorneys for Plaintiff Alistate Insurance Co. Robert S. Aaron, Esq. Telephone: (415) 438-7801 Aaron & Wilson, LLP Facsimile: (415) 438-7808 150 Post Street, Suite 400 Email: rsaaron(@aaron-wilson.com San Francisco, CA 94108 Co-counsel for Defendants Taxi Equipment and Yellow Cab Cooperative, Inc. & BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a Court Order or an agreement of the parties fo accept service by e-mail or clectronic transmission, I caused the déctiments to be sent to the-persons at-the-email addresses listed. I did not receive, within a reasonable time-after the transmission, any electronic message or other indication that the transmission was unsuccessful, PROOF OF SERVICEOC Oe YN A A PY YD BP RNY BM YN NN De ee oe 4 A ff BR YW NR st SCS OBO eB HS DA A F&F BW NY KK SG I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 9, 2015, at San Francisco, California. oy yi Ct bate SHARI L. HIIBEL PROOF OF SERVICE