Free Objection - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Jeffrey B. Kuykendal (021878) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road 3 Phoenix, Arizona 85016-9225 (602) 530-8407 4 Attorneys for Defendants 5 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

7 Constance Ann Maynard, an individual, 8
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Plaintiff, vs.

NO. CV 04-0525-PHX-RCB DEFENDANTS' RESPONSE TO PLAINTIFF'S EVIDENTIARY OBJECTIONS TO THE AFFIDAVIT OF CHERYL SAUERHOFF AND DR. EUGENE TRUCHELUT'S APRIL 24, 2001 LETTER

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10 CNA Group Life Assurance Company, an Illinois Corporation; Continental Casualty 11 Company, an Illinois Corporation; Hewitt Associates, L.L.C., an Illinois Limited 12 Liability Company; and Hewitt Long Term Disability Plan, 13 Defendants. 14 15

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Defendants CNA Group Life Assurance Company and Continental Casualty

16 Company (collectively "CNA") and Defendants Hewitt Associates, L.L.C. and Hewitt 17 Long Term Disability Plan (collectively "Hewitt") respond to Plaintiff's Evidentiary 18 Objections to the Affidavit of Cheryl Sauerhoff and Dr. Eugene Truchelut's April 24, 19 2001 Letter. 20 Plaintiff objects to the affidavit of Ms. Sauerhoff on the grounds of lack of

21 competency, lack of personal knowledge, lack of oath or affirmation and hearsay. 22 Ms. Sauerhoff signed an affidavit explaining that she was at all relevant times an
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1 employee of CNA. Further, she explained that she was familiar with the relevant 2 documents and that those documents were what they purported to be. Plaintiff has 3 provided no evidence or legal authority that Ms. Sauerhoff lacked competency, 4 personal knowledge or an oath or affirmation. Further, Ms. Sauerhoff's affidavit is 5 not hearsay as her affidavit satisfies an exception to the hearsay rules. See Fed. R. 6 Civ. P. 803(6). 7 Finally, all but one of the records for which her affidavit provides the

8 foundation have been properly admitted and considered by the Court when Ms. 9 Sauerhoff previously submitted a similar affidavit in connection with Defendants' 10 Motion for Partial Summary Judgment. See March 28, 2005 Order. 11 Plaintiff also objects to the admissibility of Dr. Truchelut's evaluation letter

12 dated April 24, 2001. Plaintiff's objection to this letter is equally unfounded. First, 13 Dr. Truchelut's letter was part of the administrative record for which Ms. Sauerhoff 14 properly laid the foundation. Second, Dr. Truchelut's letter was properly admitted 15 and considered by the Court as Exhibit E to Defendants' Motion for Partial Summary 16 Judgment. See March 28, 2005 Order. Third, Plaintiff provides no basis to suggest 17 that Dr. Truchelut's April 24, 2001 letter is anything other than what it purports to be. 18 Finally, while not necessary and only in an abundance of caution, attached as

19 Exhibit 1 hereto is the affidavit of Dr. Eugene Truchelut, who provides that he is the 20 author of his April 24, 2001 letter and it accurately reflects his opinions as a doctor 21 based upon his review of the referenced material. 22
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Accordingly, Defendants respectfully request that the Court deny Plaintiff's

2 Evidentiary Objections to the Affidavit of Cheryl Sauerhoff and Dr. Eugene 3 Truchelut's April 24, 2001 letter. 4 5 6 7 8 9 10 11 By/s/ Jeffrey B. Kuykendal Jay A. Zweig Jeffrey B. Kuykendal 2575 E. Camelback Road Phoenix, Arizona 85016-9225 Attorneys for Defendants RESPECTFULLY SUBMITTED this 11th day of October, 2005. GALLAGHER & KENNEDY, P.A.

Electronically filed this 11th day of October, 2005 12 with electronic copies to: 13 David F. Gomez, Esq. Michael J. Petitti, Jr., Esq. 14 GOMEZ & PETITTI, P.C. 2525 E. Camelback , Suite 860 15 Phoenix, Arizona 85016 Co-Counsel for Plaintiff 16 COPY of the foregoing mailed this 11th day of 17 October, 2005, to: 18 Stuart H. Sandhaus, Esq. STUART H. SANDHAUS, A.P.C. 19 Los Rios Historic District 31901 Los Rios Street 20 San Juan Capistrano, California 92675 Co-Counsel for Plaintiff 21 /s/ Jan Vigorito 1296011/130-2669 22
Case 2:04-cv-00525-RCB Document 91 -3Filed 10/11/2005 Page 3 of 3