Free Motion in Limine - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona Bar Number 6835 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service Defendant. Defendant, John E. Potter, through his undersigned counsel, hereby requests that the Court exclude any arguments or evidence about any of Dr. Lo's opinions at the trial in this case. Defendant further requests that Plaintiff be precluded from presenting any evidence or testimony about receiving counseling from Dr. Lo. As set forth below, this evidence should be precluded because Dr. Lo has not been listed as a trial witness, the letter regarding Dr. Lo's opinions is inadmissible, and Plaintiff refused to allow the VA to provide Dr. Lo's medical records. This motion is filed pursuant to the Court's direction at the pre-trial conference on Thursday, June 21, 2007 (allowing two business days for Defendant to file a motion in limine), as more fully set forth in the following Memorandum or Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND This is an action set for trial for claims arising under the Rehabilitation in which Plaintiff seeks an award from the jury for compensatory damages resulting from the United States' Postal Service's alleged failure to accommodate him, and/or discrimination against him on the basis of disability. [Parties' Proposed Joint Pre-trial Order (Doc. #124 ) (PTO), p. 4. § D.] On June 1, 2007, the date the PTO was due, Plaintiff disclosed Dr. Lo's May 25, 2007 letter, which he had
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CIV-04-0429-PHX-MHM DEFENDANT'S MOTION IN LIMINE Re: Dr. Lo's Opinions at Trial

1 listed as Ex. "P- 38" on the Plaintiff's exhibits attached to the PTO. [Ex. 1 (Pl. Seventh Supp. 2 Disclosure).] Plaintiff was deposed on July 26, 2005. He testified that since January of that 3 year, he had been treated by a psychologist employed by the VA in the Los Angeles area by the 4 name of Dr. Lo. [Ex. 2 (Jung deposition excerpts), 35:7-22.] Nearly five months after Plaintiff's 5 deposition, he first disclosed Dr. Lo as a witness. [Ex. 3 (Plaintiff's Third Supplemental 6 Disclosure dated December 19, 2005)] At Defendant's request, Plaintiff signed a release for his 7 VA records regarding his mental health records, and the VA was requested to provide those 8 records in a letter dated November 30, 2005. [Ex. 4 (Letter to VA dated November 30, 2005 and 9 signed release.)] However, when USAO office employees followed up to obtain those records, 10 the VA advised that Plaintiff had reneged on his release, and refused to allow the VA to produce 11 those records. [Ex. 5 (VA letter dated July 18, 2006).] 12 Nor did Plaintiff provide any documentation from Dr. Lo before June 1, 2007, despite that

13 Defendant sought discovery regarding Plaintiff's mental health counseling by requesting further 14 information in interrogatory number 9 on December 28, 2005: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Interrogatory No. 9: State whether you suffered or sought treatment or counseling for any physical, nervous, emotional or mental illness or disorder within the last 10 years (1995 to the present) and, if so, identify with particularity the following (Please indicate with an asterisk (*) if said health care provider or treatment relates to your claim for s damages - see Interrogatory Nos. 8, 10 15): 1) The nature of each illness or disorder; 2) State the extent and duration of each illness or disorder, including

approximating the dates the illness begin and ended; 3) The name and address of each medical practitioner or other health care provider who has treated, examined, or consulted with you concerning each illness or disorder; 4) State the approximate dates of each treatment, examination or consultation; and 5) State whether the illness or disorder resulted in any disability. If so, describe each disability and its duration. 2
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6) Was any medication prescribed? If so, state name and amount of medication; 7) Whether there is a history of psychiatric problems, mental illness, or emotional problems in your family. If so, identify each family member who has been diagnosed with psychiatric problems, mental illnesses, or emotional problems. 8) Identify any psychiatrist, psychologist, therapist counselor, or other health care practitioner from whom you have received treatment or counseling for a evaluation of emotional distress, anxiety, stress, mental anguish and depression to which you seek damages in this action On January 30, 2006, Plaintiff provided his answer to the above question by asserting that

10 he had already complied with this request by signing the authorizations to release that information 11 and provided no other information. [See Ex. 6 (Pl. Answers to Interrogatories), No. 10).] 12 However, Plaintiff revoked his agreement to release the records, and refused to let the VA 13 provide the mental health records from Dr. Lo. [Exs. 4, 5.] 14 Defendant also requested "all documents supporting [Plaintiff's claims for economic and

15 non-economic damages," all documents [Plaintiff] may/will use at trial" and "All records relating 16 in ay way to any health care, treatment, diagnosis . . . [regarding] Interrogatory nos. 8-10. . . ." 17 Plaintiff produced no documents regarding Dr. Lo's treatment until the May 25, 2007 letter 18 provided on June 1, 2007, the date the PTO was due. [Ex. 6 (Plaintiff' Response to Interrogatory 19 No. 10, Request For Production Nos. 4, 7.] 20 II. ANALYSIS 21 A. EVIDENCE OF PLAINTIFF'S TREATMENT BY DR LO AND HIS OPINIONS

22 SHOULD BE PRECLUDED BECAUSE PLAINTIFF NEITHER TIMELY NOR PROPERLY 23 DISCLOSED THIS EVIDENCE 24 25 26 27 28 3
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As stated above, Plaintiff did not timely or properly disclose Dr. Lo's opinions or his

2 underlying records. 1/ Documents concerning Dr. Lo's medical treatment should have been disclosed 3 in response to: 4 5 6 7 8 9 10 11 12 13 14 · ·
· · Defendant's requests for trial exhibits [Ex. 5, Response to Interrogatory No. 7]; Defendant's requests that Plaintiff provide information concerning his mental health treatment [Ex. 5, Response to Interrogatory No. 10, Request For Production No. 4.];

Plaintiff's avowal that the records would be forthcoming in response to the release he signed [Ex. 1, p. 35, ll. 7-22.]; the requirement that Plaintiff produce records supporting his claim for compensatory damages under FRCP 26 (a)(1)(C) (a party is required to disclose voluntarily documents supporting his computation of damages including "the nature and extent of injuries suffered").

Instead, Plaintiff circumvented Defendant's substantial efforts to obtain this information

15 by leading Defendant to believe such information would be provided, and months later revoking 16 that release. 17 Based upon Plaintiff' failure to disclose Dr. Lo's medical records, and his opinions, it is

18 requested that any such evidence or argument be precluded at trial under FRCP 37(c). Plaintiff's 19 failure to provide this information has prejudiced Defendant because Defendant has none of the 20 underlying basis to dispute Plaintiff's claims that his need for counseling was solely from his 21 "wrongful termination." 22 23 24 25 26 27 28
Dr. Lo's May 25, 2007 letter also appears to be improper under 38 C.F.R. § 14.806, which prohibits VA personnel from commenting about Plaintiff's treatment without prior written approval. Further, VA personnel are prohibited from providing opinion or "expert testimony in any legal proceedings concerning official VA information, subjects or activities, except on half of the United States or a party represented by the United States Department of Justice. 38 C.F.R. 14.808; See also United States ex rel. Touhy v. Ragen, 340 U.S.462 (1951). Further, for a VA employee to testify, certain procedures, which it appears were not done in this case. 38 C.F.R. §14.804. See e.g. Boron Oil Co. V. Downie, 873 F.2d 67, 69-70 (4th cir. 1989). Even if the foregoing regulations were considered to be inapplicable in the face of the subpoena power of the Court, here, Dr. Lo is outside the subpoena power of the Court and has not been listed to testify at trial.
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B. DR. LO'S OPINIONS DO NOT MEET THE FOUNDATIONAL REQUIREMENTS

2 OF FRE 702/703 AND ARE HEARSAY: 3 FRE 702 allows expert testimony if the expert satisfies certain foundational requirements,

4 and if it will assist the trier of fact to understand the evidence or to determine a fact in issue. 5 However, Plaintiff does not seek introduction of expert testimony, but rather a letter by Plaintiff's 6 treating physician's conclusory and prejudicial, which no doubt rely solely upon what Plaintiff 7 told him. (Of course, Defendant has been precluded from learning what Plaintiff or his wife told 8 Dr. Lo, because Plaintiff refused to allow that those records be provided.) The letter is classic 9 hearsay, pursuant to FRE 801, and is therefore inadmissible under FRE 802 because no exception 10 permits the admission of such a document. 11 Further, to allow Dr. Lo's letter, which is based upon unknown underlying information

12 would be prejudicial to Defendant because it does not allow the basis of Dr. Lo's opinions to be 13 subject to cross examination. The opinions set forth in Dr. Lo's letter are based upon unknown 14 underlying information. To allow this information would be analogous to situations in criminal 15 law involving the Confrontation Clause, and situations in which the criminal defendant is 16 deprived of his right to confront accusers. California v. Green, 399 U.S. 149, 161, 162. (1970). 17 III. CONCLUSION 18 Based upon the foregoing, it is hereby requested that the Court enter an order precluding

19 Plaintiff from presenting any evidence or argument concerning any of Dr. Lo's alleged opinions, 20 including those set forth in his May 25, 2007 letter, and precluding any testimony or argument 21 about plaintiff received counseling as a result of the alleged discrimination. 22 23 24 25 26 27 28 5
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Respectfully submitted this 25th day of June, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona s/Suzanne M. Chynoweth SUZANNE M. CHYNOWETH Assistant U.S. Attorney

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CERTIFICATE OF SERVICE

I hereby certify that on June 25, 2007, I electronically transmitted the attached document 3 to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 A. Patterson 5 Rosval Thomas Rd. 777 E. 6 Phoenix, AZ 85014 s/S. Guerin 7 ________________________________ 8 Office of the U.S. Attorney 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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