Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) Case No.: CIV 04-429 PHX MHM

Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant.

PLAINTIFF'S RESPONSE TO DEFENDANTS MOTION IN LIMINE Re: Dr. LO'S OPINIONS AT TRIAL

Plaintiff, Alexander Jung, submits this response to Defendants Motion in Limine
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respectfully requesting that this Court deny Defendants motion. This motion is supported by the following Memorandum of Points and Authorities. Dated this 26th day of June, 2007 s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES FACTS:

Defendants received notice of Dr. Lo's testimony at the deposition of Alexander L. Jung on July 26, 2005;
7 8 9 10 11 12 Q. So you haven't -- have you seen any doctors

more than once since you've been there? A. Just I'm seeing a clinical psychologist. I see

him every Wednesday. Q. A. Okay. Who is that?

Is Dr. Lowe. And is he also at the LA Clinic? Yes. How long have you been seeing Dr. Lowe? Since beginning of this year. Prior to seeing Dr. Lowe, had you seen

another -- had you sought any kind of mental health treatment from anyone else? A. Q. A. Just my wife. Okay. No. All right. And what prompted you to start Anybody else?

seeing Dr. Lowe? A. I believe after talking to my wife that she

36 believed that I needed to see someone who was more

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credential qualified for what symptom I was going through. Q. A. night. And what were your symptoms? A lot of anger, anxiety. I couldn't sleep at

And with this situation I'm in, hopeless because And I notice that my

just every day just frustrating.

relationship with my wife wasn't doing too well because of the stress I was going through. Q. Okay. And when you say the situation you're

in, what do you mean by that? A. Q. A. Q. Not working the job that I was hired to do. Which is what? U.S. Postal Service. So you're basically -- am I understanding that

you're basically attributing your -- strike that. Did Dr. Lowe give you a diagnosis? A. Q. A. Q. We're still in process at this time. He hasn't given you any kind of diagnoses? No. We're still working on it.

You've been seeing him every Wednesday since

January, and you have no diagnosis? A. Q. A. No. He hasn't diagnosed you with depression or -We're still in the process.

37 Q. So you don't have a diagnosis. So I'm assuming

Dr. Lowe can't say what your symptoms are attributed to? MR. PATTERSON: Objection to form. 3

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Q. A. Q. A.

BY MS. CHYNOWETH:

Is that right?

That's being in the medical record. You don't know? I told him exactly what happened with my job

situation. Q. So is your anger, anxiety, inability to sleep,

5 9 6 10 7 8 9 10 11 12 17 13 18 14 19 15 16 17 18 19 20 21 38 22 1 23 24 25 2 3 4 distribution clerk. Q. A. Q. All right. Same thing. The feeling of hopelessness? What about the anxiety? 20 21 22 23 24 25 A. Q. Yes. And when did you first -- the symptoms that you marriage to your not having a job at the Postal Service? Are you attributing problems with your 11 12 13 14 15 16 feeling of hopelessness, are you attributing that all to not having a job at the Postal Service? A. Q. A. Q. Yes. Anything else? No. Are you attributing your having a bad

relationship with your -- or strike that.

identified -- well, let's just start with one. When did you first notice that you were having anger? A. It started 2001 when I was hired at the

Priority Center where I started working as a

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A. Q. A. Q. A.

Same thing. And the inability to sleep? Same thing. Okay. Yes. And that all started in 2001?

Dr. Lo was disclosed as a witness on December 5, 2005.

ARGUMENT: I. Dr. Lo was timely and properly disclosed as a witness.

Rule 26(a)(1) requires the parties to disclose the identity of "each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses...." Pursuant to Rule 26(f), this disclosure must occur "at least 21 days before a scheduling conference is held" unless otherwise ordered. The parties are under a continuing duty to supplement these disclosures under Rule 26(e) if they learn that (1)

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their initial disclosures are "incomplete or incorrect," and (2) "the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." This latter phrase is not satisfied simply because the parties might know the identity of a person. The phrase "additional or corrective information" refers back to Rule 26(a)(1), and means that the parties must know not only the identity of the

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person but also that he is "likely to have discoverable information that the disclosing
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party may use to support its claims or defenses." In other words, the proffering party may be absolved of its duty to file a supplemental disclosure under Rule 26(e) identifying a certain person only if the other parties have learned through other means that the person
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might have discoverable information regarding the proffering party's claims or defenses. As trial approaches, the parties must then choose their trial witnesses from this list of persons they have disclosed pursuant to Rule 26. The deadlines for these witness disclosures are governed either by Rule 26(a)(3) or an order of the court. See Yeti bly Molly, Ltd. V. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9 Cir.2001). Defendant learned that Dr. Lo had discoverable information regarding Alex's damages on July 25, 2005, thus under Rule 26(e), Dr. Lo would be allowed as a witness. However, Plaintiff's supplemental disclosure of Dr. Lo on December 19, 2005, is in accordance with Rule 26(e) 2, which allows for his statement. Each of these disclosures

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occurred well before the courts Rule 16 discovery deadline of February 22, 2006. II. Defendants' should have done a motion to compel if Plaintiff answer was insufficient.

Plaintiff did not revoke Defendant right to request medical records. Defendant requested Plaintiff sign a Medical Authorization form on January 12, 2006. (See Exhibit 1.) Plaintiff signed the form on January 19, 2006. (See Exhibit 2.) Defendant's had until the discovery deadline of February 22, 2006 to request Dr. Lo's medical records. Defendants made their request after the Rule 16 discovery deadline of February 22, 2006,

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had passed. Therefore discovery was over and Plaintiff explained that to Defendant.
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Nevertheless, Defendants could have made a request to the court for an extension of time which they never did. Additionally, Plaintiff attempted to obtain Dr. Lo's medical

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records and was provided only with the letter of May 25, 2007. Plaintiff disclosed the letter on June 1, 2006, 60 days prior to trial. III. Dr. Lo's statements are not hearsay and thus FRE 702/703 does not apply.

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Dr. Lo's statement is admissible under FRE 803(4) as non hearsay. Section 803(4) admits as an exception to the hearsay rule: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Admissions of hearsay statements do not violate the Confrontation Clause if the statements bear adequate indicia of reliability. See Idaho v. Wright, 497 U.S. 805, 81415 (1990). When a statement is properly admitted under a "firmly rooted" hearsay exception, no other showing of reliability is required. See White v. Illinois, 502 U.S. 346, 355.57 (1992); Swan v. Peternon, 6 F.3d 1373, 1379 (9th Cir. 1993). The medical examination exception is a "firmly rooted" hearsay exception for purposes of the Confrontation Clause. See White, 502 U.S. 355. "When hearsay testimony is properly admitted pursuant to this exception, no further guarantees of trustworthiness are required." United States v. George, 960 F.2d 97, 99 (9th Cir. 1992) Citing Wright, 502 U.S. at 355. For a hearsay statement to be admissible under the medical examination exception, the court need only determine that the statement was "made for the purposes of medical diagnosis or treatment" and were "reasonably pertinent to diagnosis or treatment." See id. at 100.

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Dr. Lo's statement was made for the purposes of medical diagnosis or treatment" and was reasonably pertinent to diagnosis or treatment. Therefore under FRE 803(4) Dr. Lo's statement is admissible. Dr. Lo's statement is admissible under FRE 803(3) as non hearsay. Rule 803(3) permits the admission of statements that are otherwise hearsay if the statements reveal the then existing mental, emotional or physical condition of the declarant. See Fed.R.Evid. 803(3). Dr. Lo's Statement reveal the then existing mental and emotional condition of Alex at the time he was being treated. Therefore under FRE 803(4) Dr. Lo's statement is admissible.

CONCLUSION: Defendant's motion must be denied. Defendant was aware of Dr. Lo as a witness and had ample opportunity to obtain his records. Dr. Lo's statements are not hearsay and are admissible under FRE 803(3) and (4).

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Dated this 26th day of June, 2007
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s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on the 26th of June, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF Systems for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: [email protected] A copy of this document was provided by mailed to: The Honorable Judge Mary H. Murguia United States District Court 401 West Washington Courtroom 525 Phoenix, AZ 85003

By:

s/Stephanie Coulter Stephanie Coulter

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