Free Other Notice - District Court of Arizona - Arizona

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Timothy A. Shimko (PRO HAC VICE) (OSBN 0006736) David A. Welling (PRO HAC VICE) (OSBN 0075934) TIMOTHY A. SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Plaintiffs, ) ) v. ) ) DAVID GOLDFARB; RICHARD ) ROSS; et al., ) ) Defendants. ) ___________________________________ ) SHIMKO & PISCITELLI, et al., CASE NO. CV-04-78-PHX-FJM

PLAINTIFF'S SEPARATE STATEMENT OF FACTS CORRESPONDING TO DEFENDANT WOODCOCKS'AMENDED STATEMENT OF FACTS

NOW COMES the Plaintiff, and pursuant to LRCiv 56.1(b), hereby submits the Plaintiff's separate statement of facts corresponding to Defendant Woodcocks' statement of facts filed in support of their motion for summary judgment. (The Plaintiff utilizes the same numbering system in this statement of facts corresponding with Defendant Woodcocks' statement of facts.) 1. The Plaintiff disputes the statement of fact contained in Paragraph 1 of Defendant Woodcocks' statement of facts. Plaintiff was invited to attend a seminar that Ross,

23 24 25 26 1 Woodcock, Goldfarb, and Guenther were putting on relating to CORFs. Plaintiff was not

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asked to evaluate anything, nor to provide any report. (See the deposition of Timothy A. Shimko at P. 17 L. 1-16; P. 18-29 L. 23-25, 1-41; (T. Shimko Aff. at ¶¶ 5-6)) 2. The Plaintiff does not dispute the statement of fact contained in Paragraph 2 of Defendant Woodcocks' statement of facts; however, Defendants knew that Shimko & Piscitelli knew little about Medicare and CORF prior to their representation of the Defendants. This was not a problem as Defendants had a lawyer on staff to advise them about CORF and Medicare issues. Shimko & Piscitell acquired the knowledge they needed on those subjects as they represented the Defendants. (T. Shimko Aff. at ¶ 22.) 3. The Plaintiff does not dispute the statement of fact contained in Paragraph 3 of Defendant Woodcocks' statement of facts; however, Shimko & Piscitelli never issued a written report or opinion at that time because they were not asked to do so. It was not

13 14 15 16 17 18 19 20 Defendant Woodcocks' statement of facts, but adds that Defendants were well aware of 21 22 23 24 25 26
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their assignment to write a report or opinion. Rather, they were only asked to come and watch the seminar at that time. (See the deposition of Timothy A. Shimko at P. 17 L. 116; P. 18-29 L. 23-25, 1-4; (T. Shimko Aff. at ¶¶ 5-6)) 4. The Plaintiff does not dispute the statement of fact contained in Paragraph 4 of Defendant Woodcocks' statement of facts. 5. The Plaintiff does not dispute the statement of fact contained in Paragraph 5 of

the fact that Plaintiff's prior experience was primarily in representing plaintiffs. (T. Shimko Aff. at ¶ 22.)

Excerpts of Timothy A. Shimko Deposition attached hereto as Exhibit 1. 2

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6. The Plaintiff disputes the statement contained in Paragraph 6 of the Defendant Woodcocks' statement of facts. The Plaintiff explained the issue of a conflict to his clients Messer's Brill and Ritchie, when that issue arose. Prior to that, Plaintiff did not perceive that Ross', Woodcock's, Guenther's and Goldfarb's interests were at all diverse or that they would become so during the proceedings for which Plaintiff was retained. So, there was no reason to explain irrelevant matters to them. (T. Shimko Aff. at ¶¶ 5154.) 7. The Plaintiff disputes the statement contained in Paragraph 7 of the Defendant Woodcocks' statement of facts. The Plaintiff did not perceive a conflict because there was no conflict. (T. Shimko Aff. at ¶¶ 51-54.) 8. The Plaintiff does not dispute the statement contained in Paragraph 8 of the Defendant

13 14 15 16 17 18 19 20 10. The Plaintiff disputes the statement contained in Paragraph 10 of the Defendant 21 22 23 24 25 26 3 Woodcocks' statement of facts. The details of the transaction were quite simple. Plaintiff wired $250,000 to the account of the Defendants, and Ross gave Plaintiff 5 post dated checks totaling $250,000. No interest was charged. Defendants were well aware of these facts at the time they transpired. Plaintiff did not have significant business dealings with Woodcocks' statement of facts. 9. The Plaintiff disputes the statement contained in Paragraph 9 of the Defendant Woodcock's statement of facts. The request for the loan came from Ross, Goldfarb, Woodcock, and Guenther. Defendant Woodcock knew of the transaction before it occurred and actually requested it. Later discussions about repayment of the loan took place in his presence. (T. Shimko Aff. at ¶¶ 55-56.)

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the CORF entities. Further, the Defendants knew about the loan made to them. (T. Shimko Aff. at ¶¶ 55-56.) 11. The Plaintiff does not dispute the statement of fact contained in Paragraph 11 of Defendant Woodcock's statement of facts. In addition to agreeing to supplying legal advice, Shimko also agreed to and did invest his own money into the project. (T. Shimko Aff. at ¶¶ 70-72.) 12. The Plaintiff does dispute the statement of fact contained in Paragraph 12 of Defendant Woodcocks' statement of facts; it was the Defendants that invited Shimko to invest in Aztec Medical, along with seven other individuals. (T. Shimko Aff. at ¶¶ 70-72.) 13. The Plaintiff does dispute the statement of fact contained in Paragraph 13 of Defendant Woodcock's statement of facts, however, Plaintiff would add that Defendant Goldfarb

13 14 15 16 17 18 19 20 unwise to personally expose themselves to claims of misrepresentation. Since Goldfarb 21 22 23 24 25 26 4 was attending the seminars and making new presentations at the request of Ross, Goldfarb, and Guenther to generate more sales, Plaintiff did not perceive that the Defendants had different levels of ongoing involvement and potential culpability. Ross, for most of 2002 did discontinue appearing at and making presentations at the seminars. He reconvened doing so in the late winter of 2003 at the request of and with the full knowledge and approval of Ross, Woodcock and Guenther to generate new sales that had plummeted as a result of the lawsuits and bad press. (T. Shimko Aff. at ¶ 32.) 14. The Plaintiff disputes the statement contained in Paragraph 14 of the Defendant Woodcocks' statement of facts. The Plaintiff did advise all the Defendants that it was

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Woodcock, and Guenther encouraged, were well aware of and acquiesced in Goldfarb's conduct. (T. Shimko Aff. at ¶ 25-26, 32.) 15. The Plaintiff does not dispute the statement of fact contained in Paragraph 15 of Defendant Woodcocks' statement of facts. 16. The Plaintiff does not dispute the statement contained in Paragraph 16 of the Defendant Woodcocks' statement of facts. However, Plaintiff would add that Plaintiff did not make a deal concerning the testimony of the Defendants because no deal was ever offered for any of the Defendants. The only deal offered was to Brill and Ritchie, and not to the Defendants. (See the affidavit of Timothy A. Shimko at ¶¶ 51-54.) 17. The Plaintiff does not dispute the statement contained in Paragraph 17 of the Defendant Woodcocks' statement of facts, but would add that Plaintiff was already transitioning all

13 14 15 16 17 18 19 20 18. The Plaintiff disputes the statement contained in Paragraph 18 of the Defendant 21 22 23 24 25 26 5 Woodcocks' statement of facts. The Plaintiff was not advised that the CORF entities or that the Defendants were facing bankruptcy. Plaintiff did not discuss the homestead protection because it was never relevant to any discussion that the Plaintiff had with the Defendants. (See the deposition of Timothy A. Shimko at P. 86-87 L. 10-25, 1-5.) of the Defendant's files to their new attorneys, Boates & Welty, and Plaintiff would soon be withdrawing as Defendants' counsel. Defendants were advised of the Beus Gilbert letter at the time, but as Plaintiff would soon be withdrawing as counsel of record for Defendants, Plaintiff perceived that no conflict was present at the time he received the letter. In fact, Plaintiff ceased all representation of Defendants before the end of April 2003. (T. Shimko Aff. at ¶¶ 36, 39, 41.)

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19. The Plaintiff disputes the statement contained in Paragraph 18 of the Defendant Woodcocks' statement of facts. The Plaintiff did not charge excessive fees, and rather, mistakenly issued some bills with an incorrect hourly rate for his law clerk. The Plaintiff has always admitted throughout this litigation that the invoice needs to be adjusted to a lesser amount to correct this mistake. (T. Shimko Aff. at ¶ 78.) 20. The Plaintiff does not dispute the statement contained in Paragraph 20 of the Defendant Woodcocks' statement of facts. 21. The Plaintiff does dispute the statement of fact contained in Paragraph 21 of Defendant Woodcocks' statement of facts. Plaintiff's invoices have from the very beginning evidenced the fact that Plaintiff's were paid $320,937.50 for the services the firm rendered from November 2001 through April 2003, and that $354,949.00 are still owed

13 14 15 16 17 18 19 20 to show that Plaintiff was paid more than previously admitted does not account for 21 22 23 24 25 26 6 $272,500 in returned checks that Plaintiff received from Defendant. If you deduct $272,550 from $675,886.50, Plaintiff's invoices are accurate within $400.00. Shimko Aff. at ¶¶ 73-74.) (T. on account. (T. Shimko Aff. at ¶ 73.) 22. The Plaintiff disputes the statement contained in Paragraph 22 of the Defendant Woodcocks' statement of facts. Plaintiff's records reflect that Plaintiff provided

$675,886.50. in legal services to Ross, Goldfarb, Woodcock, and Guenther. Of that amount, Defendants paid $320, 937.50 and still owe $354,949.00 less and adjustment for Welling's fees. The checks and records of payment on which Defendant Woodcock relies

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23. The Plaintiff does not dispute the statement contained in Paragraph 23 of the Defendant Woodcocks' statement of facts. 24. The Plaintiff disputes the statement contained in Paragraph 24 of the Defendant Woodcocks' statement of facts. From almost the beginning of this litigation, Plaintiff has acknowledged to Defendants that an adjustment for Welling's fees should in all fairness be made. (T. Shimko Aff. at ¶ 78.) 25. The Plaintiff disputes the statement contained in Paragraph 25 of the Defendant Woodcocks' statement of facts. From almost the beginning of this litigation, Plaintiff has acknowledged to Defendants that an adjustment for Welling's fees should in all fairness be made. (T. Shimko Aff. at ¶ 78.) 26. The Plaintiff disputes the statement contained in Paragraph 26 of the Defendant

13 14 15 16 17 18 19 20 fairness be made. (T. Shimko Aff. at ¶ 78.) 21 22 23 24 25 26 7 28. The Plaintiff disputes the statement contained in Paragraph 28 of the Defendant Woodcocks' statement of facts. From almost the beginning of this litigation, Plaintiff has acknowledged to Defendants that an adjustment for Welling's fees should in all fairness be made. (T. Shimko Aff. at ¶ 78.) Woodcocks' statement of facts. From almost the beginning of this litigation, Plaintiff has acknowledged to Defendants that an adjustment for Welling's fees should in all fairness be made. (T. Shimko Aff. at ¶ 78.) 27. The Plaintiff disputes the statement contained in Paragraph 27 of the Defendant Woodcocks' statement of facts. From almost the beginning of this litigation, Plaintiff has acknowledged to Defendants that an adjustment for Welling's fees should in all

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29. The Plaintiff does not dispute the statement contained in Paragraph 29 of the Defendant Woodcocks' statement of facts, but would add of that amount only $121,820 of Mr. Piscitelli's time remains unpaid. (T. Shimko Aff. at ¶ 76.) RESPECTFULLY SUBMITTED ON this 12th day of May, 2008.

TIMOTHY A. SHIMKO & ASSOCIATES 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8 RESPECTFULLY SUBMITTED ON this 12th day of May, 2008. TIMOTHY A. SHIMKO & ASSOCIATES By: /s/ Timothy A. Shimko Timothy A. Shimko (OSBN 0006736) David A. Welling (OSBN 0075934) 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 By: /s/ Timothy A. Shimko Timothy A. Shimko (OSBN 0006736) David A. Welling (OSBN 0075934) 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiffs

Attorneys for Plaintiffs Shimko & Piscitelli and Timothy A. Shimko

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COPY of the foregoing electronically filed and served this 12th day of May, 2008 upon: Roger L. Cohen, Esq. Jaburg & Wilk, P.C. 3200 North Central Avenue, Ste. 2000 Phoenix, Arizona 85012 [email protected] Counsel for Defendant Ross Richard J. McDaniel, Esq. 11811 N. Tatum Blvd., Ste. 1051 Phoenix, Arizona 84208 Counsel for Defendants Woodcock Served via regular U.S. Mail upon the following: Mr. and Mrs. David Goldfarb 11437 N. 53rd Place Phoenix, Arizona 85254 Defendants Milton and Kathi Guenther 3642 E. Rockwood Phoenix, Arizona 84032 Defendants in pro per

/s/ Mildred Pacheco

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