Filing # 161301463 E-Filed 11/15/2022 07:26:13 PM
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`IN THE CIRCUIT COURT OF THE
`FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
`PALM BEACH COUNTY, FLORIDA
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`Plaintiff,
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`CASE NO: 50-2019-CA-004782-XXXX-MB
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`TERESA BROOKES,
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`vs.
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`LYFT, INC., LYFT FLORIDA, INC.,
`THE HERTZ CORPORATION, and
`WILKY ILET,
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`Defendants.
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`_________________________________/
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`NOT A CERTIFIED COPY
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`DEFENDANT LYFT’S MOTION TO BIFURCATE
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`Pursuant to Florida Rule of Civil Procedure 1.270(b), Defendant, Lyft, Inc. d/b/a Lyft
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`Florida, Inc. (“Lyft”), joins the motion to bifurcate filed by Defendant Wilky Ilet (“Ilet”) on
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`October 14, 2022, Dkt. No. 405, and independently moves to bifurcate the trial in this matter for
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`the reasons that follow.
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`1.
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`The remaining claims in this case are (1) negligent driving against Ilet premised on
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`the theory that he ran a redlight, striking Plaintiff in a crosswalk and causing her injuries (Count
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`I); and (2) products liability against Lyft, alleging that the Lyft application (the “Lyft App”) is a
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`defective product that distracted Ilet and proximately caused Plaintiff’s injuries (Counts VI-VIII).
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`2.
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`These two sets of claims should be tried separately for two independent reasons:
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`(1) “to avoid prejudice” to both Ilet and Lyft; and (2) “in furtherance of convenience” to the parties
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`and the Court as contemplated by Florida Rule of Civil Procedure 1.270(b). See id. (“The court in
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`furtherance of convenience or to avoid prejudice may order a separate trial of any claim . . . or of
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`any separate issue or of any number of claims . . . or issues.”); Johansen v. Vuocolo, 125 So. 3d
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`197, 200 (Fla. 4th DCA 2013) (affirming bifurcation of a negligence claim against a doctor and a
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`*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 11/15/2022 07:26:13 PM ***
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`1
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`negligent hiring claim against a hospital to avoid prejudice to both parties); Roseman v. Town
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`Square Ass’n, Inc., 810 So. 2d 516, 520 (Fla. 4th DCA 2001) (“[T]he law is well settled that
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`bifurcation is subject to the sound discretion of the trial court” and “bifurcation is generally proper
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`absent a specific threat of inconsistent verdicts or prejudice to a party.”).
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`I.
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`Bifurcation Would Avoid Incurable Prejudice to Ilet and Lyft.
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`3.
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`Plaintiff’s theory of distraction presents unavoidable prejudice to Lyft if the
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`negligence claim against Ilet is tried alongside the products liability claims against Lyft. As this
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`Court found at summary judgment, Ilet has unequivocally testified that he was not distracted by,
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`looking at, or interacting in any way with the Lyft App at the time of the accident. Dkt. No. 385
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`at 2-3. As the Court further noted, this was confirmed by objective evidence from the Lyft App
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`reflecting that no ride requests or messages came through the Lyft App at the time of the accident
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`and by the law enforcement officers that investigated the accident:
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`NOT A CERTIFIED COPY
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`It is undisputed based on the summary judgment record that Defendant Ilet had not
`received messages from the Lyft application at the time of the accident. Defendant
`Ilet testified that he was not distracted by the Lyft application at any time leading
`up to or at the time of the accident. The law enforcement officers and personnel
`who arrived at the accident scene or who investigated the accident did not conclude
`or find that Defendant Ilet was distracted while driving. Defendant Ilet was not
`transporting a Lyft passenger and did not receive ride requests at the time of the
`accident.
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`Id. Finally, Plaintiff’s accident reconstruction expert testified that he was unaware of any evidence
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`that Ilet was distracted by his phone, much less the Lyft App. Ex. 1 (Melcher Dep. Tr.) at 26:15-
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`19 (“I don’t know of any.”); Ex. 2 (Cummings Dep. Tr.) at 90:17-91:5 (“Q. He said that he was
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`unaware of any evidence that Mr. Ilet was distracted by his cell phone, right? A. I agree that’s what
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`he said.”).
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`4.
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`In the face of this undisputed record evidence, Plaintiff intends to rely solely on the
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`opinion of another expert, robotics professor Dr. Mary Cummings, to argue that Ilet was somehow
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`distracted by the Lyft App at the time of the accident. To get there, Dr. Cummings hypothesizes
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`that: (1) because Ilet’s vehicle struck Plaintiff in a cross-walk, he must have been distracted; and
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`(2) because he was distracted, he must have been distracted by the Lyft App. Id. at 107:5-109:23.
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`Dr. Cummings will testify that she did nothing to rule out any other potential distractors—she
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`merely relied on Ilet’s testimony that he was not distracted by anything else, while ignoring his
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`testimony that he was not distracted by the Lyft App:
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`Q. I want to know what methodology you applied to rule out other stimuli?
`A. Mr. Ilet testified himself that the radio wasn’t a stimulus, the air conditioner
`wasn’t a stimulus and that there were no other apps open on his phone.
`Q. So you’re relying exclusively on Mr. Ilet’s testimony to reach that conclusion?
`A. I have no other evidence to suggest otherwise. . . .
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`Q. If you’re relying exclusively on Mr. Ilet’s testimony and you’re finding part of
`it to be fallible, how are you sure that the part that’s not fallible is him saying he
`wasn’t distracted by something else?
`A. I have no other way of knowing if he was distracted by something else.
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`NOT A CERTIFIED COPY
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`Id. at 95:10-97:22 (emphasis added), 101:2-11, 101:24-105:5.
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`5. Allowing this post hoc ergo propter hoc “products liability” theory to be tried alongside
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`the underlying simple motor vehicle negligence claim against Ilet presents clear and uncurable
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`prejudice to both Lyft and Ilet in multiple significant ways. It creates the potential for jury
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`confusion by inviting the jury to disregard the objective evidence to reach unsupported conclusions
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`about distraction. And it encourages the jury to rely on vicarious liability principles this Court has
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`already rejected as a matter of law.
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`6. For example, Plaintiff intends to argue that the Lyft App was distracting because it
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`“require[es] Lyft drivers to respond to Customers’ requests for driving services in a limited period
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`of time.” Am. Compl. ¶ 53; see also Dkt. No. 403 at 11 (noting Plaintiff’s intent to present
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`“evidence that the Lyft application required Defendant Ilet to make a decision within 15 seconds
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`whether to accept a ride request”). However, the “undisputed” evidence is that Ilet “did not receive
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`ride requests at the time of the accident” and did not intend to accept any ride request at the time
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`of the accident. Dkt. No. 385 at 2-3 (emphasis added); see also Ex. 3 (Ilet Dep. Tr.) at 100:1-3,
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`315:14-316:25.
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`7. Thus, if Plaintiff’s claims are tried together, a jury will be asking itself: why is testimony
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`regarding ride requests even being presented? It would only serve to invite the jurors to disregard
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`the undisputed evidence, find that Ilet was distracted by a ride request at the time of the accident
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`even though he received no such request, and hold him liable on that basis. In turn, such a
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`counterfactual finding that a ride request distracted Ilet would render it almost inevitable that the
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`jury would then hold Lyft liable on products liability theories on the basis of nonexistent evidence.
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`That is just the type of prejudice to different defendants being pursued under different theories that
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`bifurcation is designed to eliminate. See, e.g., Johansen, 125 So. 3d at 200 (“The trial court
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`properly exercised its discretion [to bifurcate] when it found that this evidence (relevant on the
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`issue of whether [one defendant] was negligently hired and retained) could irreparably damage the
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`jury’s ability to fairly decide the issue of whether [the other defendant] acted within the applicable
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`standard of care”).
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`8. Trying these claims together could also create conflict between Lyft and Ilet where there
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`currently is none on the undisputed evidence. Because there is no evidence that Ilet was distracted
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`by anything and the Lyft App will be the only potential distractor raised by Plaintiff, trying these
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`claims together would essentially place the burden on Lyft to disprove that the Lyft App distracted
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`Ilet by coming up with other theories of distraction that are equally unsupported by the evidence
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`and cross-examining Ilet on those unsupported theories. If the claims are tried together, all of this
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`will play out while the jury is being asked to determine whether Ilet bears any fault at all. Further,
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`it is Plaintiff’s burden to reliably rule out other potential distractors, not Lyft’s burden to invent
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`them. Requiring Lyft to do so would unfairly prejudice both Ilet and Lyft by, again, encouraging
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`the jury to make liability determinations detached from the actual undisputed evidence related to
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`the distinct theories Plaintiff has alleged against Ilet and Lyft.
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`9. Finally, this Court has already granted summary judgment in Lyft’s favor as to Plaintiff’s
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`vicarious liability claim, finding that Ilet is an independent contractor as a matter of law under
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`Florida’s Transportation Network Companies Statute, Fla. Stat. § 627.748(9) (the “TNC Statute”).
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`See Dkt. Nos. 351, 358. Given the lack of any evidence that Ilet was looking at or distracted by
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`the Lyft App at the time of the accident, trying Plaintiff’s negligence claim against Ilet alongside
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`her products liability claims against Lyft presents the risk that the jury will improperly hold Lyft
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`vicariously liable for Ilet’s actions notwithstanding the Court’s ruling on this issue. For example,
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`Plaintiff intends to argue that Lyft “controlled” Ilet as it pertains to the Lyft App. See Dkt. No.
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`385 at 7 (“There is a measure of control by Defendant Lyft over Defendant Ilet as it relates to the
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`period of time he had to accept or decline passenger ride requests and the frequency upon which
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`Defendant Ilet would receive ride requests.”). This is contrary to the Court’s finding that Ilet was
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`an independent contractor and runs afoul of the TNC Statute express mandate that a “TNC is not
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`deemed to own, control, operate, direct, or manage the . . . TNC drivers that connect to its digital
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`network . . . .” Fla. Stat. § 627.748(1)(e). In other words, trying these claims together makes it
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`more likely that jurors will be confused and conflate principles of vicarious liability with products
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`liability theories, placing an unfair thumb on the scale as to both Ilet and Lyft.
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`10. Where, as here, trying both sets of claims together “could irreparably damage the jury’s
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`ability to fairly decide the issue[s],” bifurcation is necessary. Johansen, 125 So. 3d at 200. For
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`just these reasons, in Johnson the 4th DCA affirmed the propriety of bifurcating an underlying
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`medical malpractice claim against a doctor and a negligent hiring claim against the hospital for
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`hiring the doctor’s assistant, finding that evidence of the assistant’s prior medical malpractice—
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`relevant to the negligent retention claim—would prejudice the doctor’s defense of the underlying
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`negligence claim, which would in turn prejudice the hospital in a prejudicial feedback loop. Id.
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`The same situation is presented here and the same result warranted.
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`II.
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`Bifurcation Would Further Convenience and Judicial Economy.
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`11. Bifurcation would also “further[] . . . convenience,” Fla. R. Civ. P. 1.270(b), as Ilet’s
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`underlying negligence is a causal prerequisite to any finding of liability on Lyft’s part, but not vice
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`versa. Trying the underlying claim against Ilet first could obviate the need for a trial against Lyft
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`if the jury finds Ilet was not negligent. In the event Ilet is found liable, there would be little, if
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`any, duplication between the motor vehicle negligence trial—which would focus on the color of
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`the traffic light at issue, accident reconstruction, Plaintiff’s comparative negligence, and Plaintiff’s
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`injuries—and the subsequent products liability trial, which would focus on (1) whether the Lyft
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`App is defective, and (2) whether that defect was the proximate cause of the accident. The
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`efficiencies gained by trying a dispositive threshold issue first have been found to constitute proper
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`grounds for bifurcation as “further[ing] convenience” under Rule 1.270(b). See Microclimate
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`Sales Co. v. Doherty, 731 So. 2d 856, 858 (Fla. 5th DCA 1999) (affirming bifurcation of threshold
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`issue from “all other necessary elements” of plaintiff’s claims “in the interest of convenience and
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`judicial economy”).
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`12. Finally, “bifurcation is generally proper absent a specific threat of inconsistent verdicts or
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`prejudice to a party,” id., and there is no threat of either here. There is no risk of inconsistent
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`verdicts here: the jury could (1) find that Ilet was not negligent, in which case there would be no
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`products liability claim against Lyft; (2) find that Ilet was negligent, and then in the subsequent
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`case against Lyft find that the Lyft App was not the proximate cause of the accident; or (3) find
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`that Ilet was negligent, and then in the subsequent case against Lyft find that the Lyft App was the
`proximate cause of the accident. None of these possibilities presents the threat of an inconsistent
`verdict. See id. (“severance of issues proper where inconsistent verdicts ‘do not appear inevitable’”
`(quoting Diamond v. Whaley, Chapman & Hannah, M.D. ’s, 550 So. 2d 54 (Fla. 2d DCA 1989)).
`Nor would there be any prejudice to Plaintiff—taking away the unfair prejudice that trying these
`claims together would cause Lyft and Ilet does not constitute prejudice to Plaintiff, only basic
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`fairness. See, e.g., Johansen, 125 So. 3d at 200.
`CONCLUSION
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`For these reasons, Lyft respectfully requests that
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`the Court bifurcate the underlying
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`negligence claim against Ilet from the products liability claims against Lyft.
`Date: November 15, 2022
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`NOT A CERTIFIED COPY
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`Respectfully submitted,
`By: /s/MarkF. Bideau_
`GREENBERG TRAURIG, PA
`777 South Flagler Drive
`Suite 300 East
`West Palm Beach, FL 33401
`Telephone: (561) 650-7918
`Facsimile: (561)650-7900
`MARK F. BIDEAU
`Florida Bar No. 564044
`E-Mail: bideaum@gtlaw.com
`
`333 S.E. 2nd Avenue
`Suite 4400
`Miami, Florida 33131
`Telephone: (305) 579-0767
`Facsimile: (305) 579-0717
`JAMES E. GILLENWATER
`Florida Bar No. 1013518
`Email: gillenwaterj@gtlaw.com
`EMILEY F. PAGRABS
`Florida Bar No. 1030834
`Email: pagrabse@gtlaw.com
`
`7
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`SCOTT M. SARASON
`Florida Bar No.: 394718
`E-mail: ssarason@rumberger.com
`docketingmiami@rumberger.com
`and ssarasonsecy@rumberger.com
`JENS C. RUIZ
`Florida Bar No.: 96119
`E-mail: iruiz@rumberger.com
`docketingmiami@rumberger.com
`and jruizsecy@rumberger.com
`RUMBERGER, KIRK, & CALDWELL, PA
`Brickell City Tower, Suite 3000
`80 Southwest 8th Street
`Miami, Florida 33130-3037
`Tel: 305.358.5577
`Fax: 305.371.7580
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`Attorneysfor Defendant, Lyft, Inc. d/b/a Lyft
`Florida, Inc.
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on this 15th day of November 2022, I electronically filed the
`foregoing document with the Clerk of the Court using the Florida Courts E-Filing Portal.
`certify that the foregoing document is being served on counsel via e-mail generated by the E-Portal
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`I also
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`NOT A CERTIFIED COPY
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`/s/ Janies E. Gillenwater
`James E. Gillenwater
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`system.
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`Jeanmarie Whalen, Esq.
`Matthew T. Christ, Esq.
`Domnick Cunningham & Whalen
`2401 PGA Boulevard, Suite 140
`Palm Beach Gardens, Florida 33410
`jw@dcwlaw. com
`mtc@dcwlaw.com
`eservice@dcwlaw. com
`
`and
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`Jane Kreusler-Walsh
`Rebecca Mercier Vargas
`Stephanie L. Serafin
`Kreusler-Wash, Vargas & Serafin, P.A.
`501 South Flagler Drive, Suite 503
`West Palm Beach, FL 33401-5913
`janewalsh@kwvsappeals. com
`rvargas@kwvsappeals.com
`sserafin@kwvsappeals.com
`eservice@kwvsappeals.com
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`Attorneysfor Plaintiff
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`Glen R. Goldsmith Esq.
`Glen R. Goldsmith PA.
`9500 S. Dadeland Blvd, Suite 601
`Miami, Florida 33156
`ggoldsmith@goldsmithpa. com
`lchacon@goldsmithpa.com
`Attorneysfor Wilky IIet
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`EXHIBIT 
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`NOT A CERTIFIED COPY
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` (Pages 1 to 4)
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`Page 1
`1 IN THE FIFTEENTH JUDICIAL CIRCUIT COURT
` IN AND FOR PALM BEACH COUNTY, FLORIDA
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`1
`Page 2
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` CASE NO. 50-2019-CA-004782-XXXX-MB
`
`2
`
`34
`3 4
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`1 APPEARANCES VIA VIDEOCONFERENCE:
`2 JEANMARIE WHALEN, ESQUIRE
`DOMNICK CUNNINGHAM & WHALEN
`3 2401 PGA Boulevard
`Suite 140
`4 Palm Beach Gardens, Florida 33410
`jw@dcwlaw.com
`5 561-625-6260
`6 Counsel for Plaintiff
`7
`SCOTT M. SARASON, ESQUIRE
`8 RUMBERGER, KIRK & CALDWELL, P.A.
`Brickell City Tower
`9 Suite 3000
`80 Southwest 8th Street
`10 Miami, Florida 33130
`305-358-5577
`11 ssarason@rumberger.com
`12 Counsel for Defendant, Lyft, Inc. d/b/a
`Lyft Florida, Inc.
`13
`14 JAMES E. GILLENWATER, ESQUIRE
`GREENBERG TRAURIG, P.A.
`15 777 South Flagler Drive
`Suite 300 East
`16 West Palm Beach, Florida 33401
`561-650-7918
`17
`Co-Counsel for Defendant, Lyft, Inc. d/b/a
`18 Lyft Florida, Inc.
`19
`GLEN R. GOLDSMITH, P.A.
`20 9500 South Dadeland Boulevard
`Suite 601
`21 Miami, Florida 33156
`305 670-5500
`22 ggoldsmith@goldsmithpa.com
`23 Counsel for Wilky Ilet
`24
`ALSO PRESENT VIA VIDEOCONFERENCE:
`25 BRIAN TERRINONI, VIDEOGRAPHER
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`NOT A CERTIFIED COPY
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`TERESA BROOKES,
`5 Plaintiff,
`6 vs.
`7 LYFT, INC., LYFT FLORIDA, INC.,
`THE HERTZ CORPORATION, and
`8 WILKY ILET,
`9 Defendants.
` /
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`10
`11
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` VIDEO-RECORDED VIDEOCONFERENCE DEPOSITION
`12 OF DANIEL J. MELCHER, P.E.
`13 TAKEN ON BEHALF OF THE DEFENDANT
` LYFT, INC. D/B/A LYFT FLORIDA, INC.
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`14
`15
`16
`17 DATE: Friday, October 16, 2020
`18 TIME: 10:00 a.m. - 2:51 p.m.
`19 PLACE: By Videoconference
`20
`21
`22
`23
`24 Examination of the witness taken before:
`25 April Goldberg, FPR
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`Page 3
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`1 I N D E X
`2 PAGE
`3 TESTIMONY OF Daniel J. Melcher, P.E.
`4 Direct Examination by Mr. Sarason 5
`5 Cross Examination by Mr. Goldsmith 197
`6 Redirect Examination by Mr. Sarason 206
`7 CERTIFICATE OF OATH 209
`8 CERTIFICATE OF REPORTER 210
`9 ERRATA SHEET 211
`10 READ & SIGN LETTER 212
`11 * * * * * *
`12 DEFENDANTS' EXHIBITS
`13 No. Description Page
`14 Exhibit 1 Notice of Taking Deposition 8
`15 Exhibit 2 File 9
`16 Exhibit 3 Additional Records 3
`17 Exhibit 4 Photos 84
`18 REPORTER'S NOTE: As of 10/21/20 Exhibit Nos. 2 and 3
`were not furnished to the court reporter and will be
`19 attached hereto when provided.
`20
`21 * * * * * *
`22 S T I P U L A T I O N S
`23 It is hereby stipulated and agreed by and
`between counsel present for the respective parties and
`24 the deponent that the reading and signing of the
`deposition are hereby reserved.
`
`25
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`Page 4
`1 THE VIDEOGRAPHER: On the record. Today's
`2 date is October 16, 2020. The time is 10:00 a.m.
`3 This is the video-recorded deposition of Daniel J.
`4 Melcher, P.E. in the matter of Teresa Brookes
`5 versus Lyft, Inc, et al. This deposition is being
`6 conducted over a Zoom video conference. The court
`7 reporter today is April Goldberg, and the
`8 videographer is Brian Terrinoni.
`9 THE COURT REPORTER: The attorneys
`10 participating in this deposition acknowledge that
`11 I, April Goldberg, the court reporter, am not
`12 present with the witness and that I will be
`13 reporting the proceedings and administering the
`14 oath remotely. The arrangement is pursuant to the
`15 Florida Supreme Court administrative order issued
`16 regarding COVID-19. The parties and their counsel
`17 consent to this arrangement and waive any
`18 objections to this manner of reporting.
`19 Due to the need for this deposition to
`20 take place remotely because of the government's
`21 order for social distancing, the parties will
`22 stipulate that the court reporter may swear in the
`23 witness over videoconference and that the witness
`24 has verified their identity.
`25 Please indicate your agreement by stating
`
`Storm Reporting Services 954-450-4366
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`

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` (Pages 25 to 28)
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`Page 25
`1 THE WITNESS: The answer is I will be
`2 testifying that the distraction element is
`3 consistent with cell phone use, but not that it was
`4 cell phone use.
`5 BY MR. SARASON:
`6 Q. Okay. Do you have any evidence at all that
`7 Mr. Ilet was using his cell phone at the time of this
`8 accident?
`9 A. I would say I have evidence that he was not
`10 attending to the driving task and that there was a cell
`11 phone in the environment. I do not know if he was using
`12 it or not.
`13 Q. There was a radio, there was an
`14 air-conditioner, there were windows all around the
`15 vehicle, so my question is very, very specific.
`16 Are you aware of any evidence that Mr. Ilet
`17 was using his cell phone at the time of this accident?
`18 A. Because of the way you phrased the question, I
`19 would answer his level of inattention in terms of
`20 duration and quantity was not consistent with use of a
`21 radio, an air-conditioning, T.hose types of activities
`22 typically involve glances away from the roadway in the
`23 realm of one second or less. And this is an extended
`24 duration, which is more consistent with interacting with
`25 a cell phone than it would be with other things that
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`7
`Page 26
`1 you've mentioned. Now, all I can say is consistency. I
`2 can't say that it absolutely was.
`3 Q. You've been an expert for -- have testified in
`4 trials and depositions for many, many years. And so you
`5 are aware of what I mean by the term "evidence." And so
`6 are you aware of any paper evidence, any testimonial
`7 evidence that Mr. Ilet was using his cell phone at the
`8 time of this accident?
`9 A. Currently, that was not something that I've
`10 studied, so I don't know if that evidence exists or not.
`11 I'm simply studying the driver behavior and the
`12 consistency of it with attention or inattention. Again,
`13 I have not studied any cell phone records, so I wouldn't
`14 know.
`15 Q. We're getting there. Are you aware of any
`16 evidence that Mr. Ilet was using his cell phone at the
`17 time of this accident?
`18 A. Again, that's outside of my scope, so I don't
`19 know of any, but doesn't mean it doesn't exist.
`20 Q. In Exhibit 2 and Exhibit 3 that we have marked
`21 to your deposition, which is your complete file, is
`22 there any evidence contained in your file that Mr. Ilet
`23 was using his cell phone at the time of this accident?
`24 A. I don't know. While I was asked to produce
`25 all of the documents that are in my file, some of them
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`NOT A CERTIFIED COPY
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`Page 27
`1 are not part of my scope, perhaps cell phone records or
`2 other documentation that I wouldn't have looked at.
`3 Q. So to clarify, then, I just want to make sure,
`4 that you are not going to be offering an opinion in this
`5 case within a reasonable degree of engineering
`6 probability that Mr. Ilet was using his cell phone at
`7 the time of this accident and that was a cause of the
`8 accident; is that correct?
`9 A. The cause of the accident was his inattention
`10 and distraction from the driving task. The duration of
`11 that is most consistent with interaction with a cell
`12 phone, but I do not know if he was interacting with a
`13 cell phone or not.
`14 Q. Okay. And when you say you don't know whether
`15 he was interacting with a cell phone, then you are not
`16 going to be providing an opinion that Mr. Ilet was using
`17 his cell phone at the time of this accident and that was
`18 a cause of the accident; is that correct?
`19 A. His behavior was consistent with cell phone
`20 use is what I will be saying.
`21 Q. But not that you have an opinion within a
`22 reasonable degree of engineering probability that he was
`23 using a cell phone and that was the cause of the
`24 accident?
`25 A. That's why I used the word "consistent."
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`Page 28
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`1 Q. Okay.
`2 A. I can testify about consistency with that
`3 evidence, but not --
`4 Q. Am I --
`5 A. -- absolute.
`6 Q. Am I correct with what I said to you, that you
`7 will be offering an opinion in this case within a
`8 reasonable degree of engineering probability that
`9 Mr. Ilet was using his cell phone at the time of this
`10 accident and that it was a cause of the accident?
`11 A. Again, I go up to the point of consistency,
`12 not that he was using it.
`13 Q. But am I correct that you are not going to be
`14 offering an opinion within a reasonable degree of
`15 engineering probability that Mr. Ilet was using his cell
`16 phone at the time of this accident, that that was a
`17 cause?
`18 A. The phrase you have used is not one I will
`19 use. I will use that it was consistent with.
`20 Q. Are you aware of any other expert retained by
`21 Plaintiff that will be offering that opinion?
`22 A. I don't know. To some degree that may be a
`23 jury question more than an expert opinion.
`24 Q. That would be up to the judge, won't it? Yes?
`25 A. I'm not a legal professional. I don't -- I
`
`Storm Reporting Services 954-450-4366
`
`

`

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`EXHIBIT 2
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`

`INDEX
`
`
`WITNESS
`MARY CUMMINGS, PH.D.
`
` PAGE
`
` Exhibits . . . . . . . . . . . . . . . . . . . . 4
` Direct Examination by Mr. Gillenwater . . . . . . 8
`Cross Examination by Mr. Goldsmith . . . . . . 166
` Cross Examination by Ms. Whalen . . . . . . . 174
` Redirect Examination by Mr. Gillenwater . . . . 183
` Certificate of Oath . . . . . . . . . . . . . . 191
` Certificate of Reporter . . . . . . . . . . . 192
`Errata Sheet . . . . . . . . . . . . . . . . . 193
`
`
`
`
`* * * * * *
`S T I P U L A T I O N S
` It is hereby stipulated and agreed by and
`between counsel present for the respective parties, and
`the deponent, that the reading and signing of the
`deposition are hereby reserved.
`
`
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` IN THE CIRCUIT COURT OF THE
` FIFTEENTH JUDICIAL CIRCUIT IN AND FOR
` PALM BEACH COUNTY, FLORIDA
` CASE NO.: 50-2019-CA-004782-XXXX-MB
` DIVISION: AD
` TERESA BROOKES,
` Plaintiff,
`
`vs.
`
`LYFT, INC., LYFT FLORIDA, INC.,
`THE HERTZ CORPORATION, and
`WILKY ILET,
` Defendants.
`-----------------------------------------
`
` (VIA ZOOM VIDEO CONFERENCE)
`
` VIDEO DEPOSITION OF MARY CUMMINGS, PH.D.
` DATE TAKEN: Friday, October 23, 2020
` TIME: 1:02 p.m - 6:22 p.m.
` PLACE: ALL PARTIES APPEARED VIA
` ZOOM VIDEO CONFERENCE
` TAKEN BY: Susanne Bazan
` Court Reporter and Notary Public
` in and for the State of Florida
`
`
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`NOT A CERTIFIED COPY
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`EXHIBITS
` PAGE
` Defendant's Exhibit No. 1 . . . . . . . . . 11
`(Notice of Taking Videotaped Deposition Duces Tecum)
` Defendant's Exhibit No. 2 . . . . . . . . . . . 14
`(C.V.)
` Defendant's Exhibit No. 3 . . . . . . . . . . . 17
`(Plaintiff's Answers to Defendant's Expert
`Interrogatories)
` Defendant's Exhibit No. 4 . . . . . . . . . . . 33
`(Affidavit)
` Defendant's Exhibit No. 5 . . . . . . . . . . . 46
`(Invoice - June 1, 2020)
` Defendant's Exhibit No. 6 . . . . . . . . . . 51
`(Invoice - August 25, 2020
` Defendant's Exhibit No. 7 . . . . . . . . . . 51
`(Email)
` Defendant's Exhibit No. 8 . . . . . . . . . . 67
`(Article)
` Defendant's Exhibit No. 9 . . . . . . . . . . 68
`(Article - Plight of the Distracted Pedestrian)
` Defendant's Exhibit No. 10 . . . . . . . . . . 73
`(NHTSA 2016 Study)
` Defendant's Exhibit No. 11 . . . . . . . . . . 78
`(Development and Evaluation of Vehicle to
` Pedestrian Safety Interventions)
` Defendant's Exhibit No. 12 . . . . . . . . . . 92
`(Mr. Ilet's Ride History with Lyft)
` Defendant's Exhibit No. 13 . . . . . . . . . . 92
`(Log - Calls, Messages)
` Defendant's Exhibit No. 14 . . . . . . . . . . 121
`(Mr. Ilet's Deposition Transcript)
`
`STORM REPORTING SERVICES, INC.
`
`Phone: (954) 450-4366
`
`Fax: (954)
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`
` APPEARANCES:
` DOMNICK CUNNINGHAM & WHALEN
` JEANMARIE WHALEN, ESQUIRE
` MATTHEW CHRIST, ESQUIRE
` 2401 PGA Boulevard
` Suite 140
` Palm Beach Gardens, Florida 33410
` Appearing on behalf of the Plaintiff
` (Via Zoom Video Conference)
` RUMBERGER, KIRK & CALDWELL, P.A.
` SCOTT M. SARASON, ESQUIRE
` Brickell City Tower
` 80 S.W. 8th Street
` Suite 3000
` Miami, Florida 33130
` Appearing on behalf of Lyft, Inc.
` d/b/a Lyft Florida, Inc.
` (Via Zoom Video Conference)
` GREENBERG TRAURIG, P.A.
` JAMES E. GILLENWATER, ESQUIRE
` ANGELA A. KORGE, ESQUIRE
` 777 South Flagler Drive
` Suite 300 East
` West Palm Beach, Florida 33401
` Appearing on behalf of Lyft, Inc.
` d/b/a Lyft Florida, Inc.
` (Via Zoom Video Conference)
` GLEN R. GOLDSMITH, P.A.
` GLEN R. GOLDSMITH, ESQUIRE
` 9500 South Dadeland Boulevard
` Suite 601
` Miami, Florida 33156
` Appearing on behalf of Wilky Ilet
` (Via Zoom Video Conference)
` ALSO PRESENT:
` BRIAN TERRINONI, VIDEOGRAPHER
` (Via Zoom Video Conference)
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`A
`He did.
`Q
`And that report has a specific section for
`driver distraction, right?
`A
`It did.
`Q
`And he filled out one, not distracted, even
`though there were options to fill in for cell phone
`distraction, right?
`A
`That is correct.
`Q
`So you're disregarding Officer Frey's
`testimony?
`A
`I'm sure Officer Frey is a great policeman,
`but he's not trained in cognitive science, nor does he
`have a Ph.D. in human systems engineering. And so I
`would not expect him to understand what to look for
`when it comes to distraction.
`Q
`Now, just to be clear, Officer Frey
`investigated the scene, right?
`A
`That is my understanding.
`Q
`And you didn't do any independent
`investigation of the scene, correct?
`A
`That is correct.
`Q
`As you testified earlier, you have no
`specialized expertise in accident reconstruction,
`right?
`A
`
`That is correct.
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`Q
`You also base your opinions on the testimony
`of Officer Lampiasi who investigated the accident as
`we discussed earlier, right?
`A
`I read his deposition, yes.
`Q
`And Officer Lampiasi testified he was unaware
`of any evidence that Mr. Ilet was distracted by his
`cell phone, right?
`A
`That is what he testified.
`Q
`And you base your opinions on the testimony
`of Officer Mayles who investigated the accident while
`with the Palm Beach Police Department, right?
`A
`I read his deposition.
`Q
`And Officer Mayles testified he was unaware
`of any evidence that Mr. Ilet was distracted by his
`cell phone, right?
`A
`That is correct.
`Q
`And you reviewed Mr. Melcher's testimony,
`right?
`A
`I did.
`Q
`And Mr. Melcher testified that he was unaware
`of any evidence that Mr. Ilet was distracted by his
`cell phone, right?
`MS. WHALEN: Object to form.
`THE WITNESS: Mr. Melcher said he was leaving
`that question up to be discussed today.
`
` 
`
`BY MR. GILLENWATER