Free Response to Motion - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Monica Ortega-Guerin, plaintiff, vs.

No. CIV 04-0289-PHX-MHM Plaintiff's Response to Defendants' Supplement to Defendants' Motion in Limine regarding Damages

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City of Phoenix, Frank Favela, and Frank Peralta, defendants.

At Plaintiff's Deposition of June 3, 2005, Defendants extensively examined
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Plaintiff regarding the medical treatment that she received as a result of her harassment
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at the City of Phoenix, including the fact she treated with a Doctor Sy at Cigna Health
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Care Services. See attached Exhibit A.
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During the course of the deposition, which started at 9:00 and ended at 2:40 p.m.,
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at no time did Defendants indicate that they had not received copies of Ms. Ortega's
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medical records from Cigna.
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In fact, Plaintiff's counsel believed that he had provided defense counsel with a
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copy of Plaintiff's medical records and even believes that he remembers defense
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Case 2:04-cv-00289-MHM

Document 56

Filed 12/06/2005

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counsel telling him that the copy provided was illegible and difficult to read. In addition to never notifying Plaintiff's counsel that the medical records were not received, defense counsel never filed a motion to compel production of the documents or made any other efforts to subpoena the documents from Cigna. When Plaintiff's counsel learned that Defendants had not been provided with the medical records, Plaintiff's counsel immediately provided them to Defendants. Now, on the eve of trial, based upon the late production of the medical records, defense counsel contends that Ms. Ortega-Guerin should not be allowed to testify regarding her emotional distress because her medical records were not disclosed, even though Ms. Ortega does not intend to adduce the medical records into evidence at trial and does not intend to call any doctor to testify at trial regarding her emotional distress. Clearly Plaintiff has the right to testify regarding the emotional problems caused by the harassment that she suffered at the City of Phoenix. Defendants' complaints regarding discovery in this matter are especially ironic given the fact that they listed a witness for the first time in their Pretrial Order (Mr. David Deneau) that was previously undisclosed and also did not object to any of Plaintiff's Exhibits until after the Pretrial Order was filed. In addition, defense counsel was over four months late in responding to Plaintiff's Request for Production of Documents and hence lacks any standing to complain of any late disclosures in this case, given the fact that Plaintiff produced her medical records to Defendants as soon as her counsel discovered that in fact Defendants had not previously received them.
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Based upon the foregoing, Defendants' Motion in Limine regarding Plaintiff's Damages should be denied. Dated the 6th day of December, 2005. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

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CERTIFICATE OF SERVICE

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I hereby certify that on December 6, 2005, I electronically transmitted the attached document 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: David F. Gaona Gaona Law Firm 3101 North Central Avenue, Suite 720 Phoenix, Arizona 85012 Attorney for Defendants

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I further certify that on December 6, 2005, the attached document was handdelivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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Case 2:04-cv-00289-MHM

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