Free Motion in Limine - District Court of Arizona - Arizona

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GAONA LAW FIRM
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David F. Gaona, State Bar No. 007391 Nicole Seder Cantelme, State Bar No. 021320 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MONICA ORTEGA-GUERIN, Plaintiff, vs. CITY OF PHOENIX, FRANK FAVELA, AND FRANK PERALTA Defendants. Defendants, City of Phoenix, Frank Favela and Frank Peralta respectfully submit this supplement to their Motion in Limine No. 3 regarding damages and other evidence not disclosed. As the Court will recall, at the Pretrial Conference, Plaintiff's counsel produced a copy of medical records of the Plaintiff, indicating to the Court that the records had previously been sent to defense counsel. Defense counsel informed the Court that no such records had ever been received. Nonetheless, a copy of the records was made for defense counsel and has subsequently been reviewed. The Court ordered Plaintiff's No. CV04-0289 PHX MHM DEFENDANTS' SUPPLEMENT TO MOTION IN LIMINE NO. 3 REGARDING DAMAGES

Case 2:04-cv-00289-MHM

Document 53

Filed 12/01/2005

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counsel to provide evidence to the Court that the records had been provided to defense counsel. As of the filing of this document, defense counsel has seen no evidence from Plaintiff's counsel that a filing has been made with the Court demonstrating that such records were provided; moreover, a review of defense counsel's file again reveals no receipt of such records and no cover letter revealing that such records were sent, let alone a notice of service indicating that the outstanding request for production, that requested such records, was answered. As noted in the motion in limine, the lack of disclosure, in light of requesting such records, should preclude the Plaintiff from informing the jury that she has suffered from any medical or psychological problems, as appropriate disclosure was not made. It would be unfair, in the absence of that appropriate disclosure, to allow the Plaintiff to testify that she suffers from stress, depression, anxiety disorder, or similar type medical/psychological terms that would imply a true medical or psychological basis. Indeed, the records reveal that the Plaintiff was seen by her general practitioner approximately one week following the incident in the presence of Albert Bivins and since that time, has only seen a general practitioner on a handful of occasions, not necessarily for anything relating to the job. Defendants' submit that if any such evidence is going to be submitted, that Defendants be provided an opportunity to take the deposition of Plaintiff's general practitioner relating to the scant notes contained in his progress notes during the course of office visits, and his protocol relative to prescribing medication.

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GAONA LAW FIRM

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Defendants sought from the Plaintiff information with respect to her damage claim. It is incumbent for the Plaintiff to carry her burden with respect to the

establishment of damages. Consequently, Defendants sought documentation to back up any damage claim she possessed due to the general and brief damage disclosure contained in the Plaintiff's initial and sole disclosure statement. When back up documentation was not forthcoming, nor her disclosure supplemented, it did not become incumbent upon the Defendant to go search, rather it was incumbent upon the Plaintiff to provide the documentation to serve as the spring board of the Defendant for follow up or further review. In the absence of such documentation, it must be assumed that no such documentation exists and thus, the Plaintiff has no back up for the damage claim. That is exactly how it was construed, that is, the initial disclosure was general in terms of damages, a request for production was propounded, no documentation was received with the exception of a couple of years of tax records (however, those are not relevant since there is no wage claim in the case), and thus, the Plaintiff's failure to provide documentation should preclude them from introducing evidence at the trial before this jury concerning damage issues. Moreover, Plaintiff completely failed to answer Non-Uniform Interrogatories requesting that she specify dates, times and incidences for which she seeks damages in this case. Again, the complete and utter failure to answer those Interrogatories should

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GAONA LAW FIRM

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preclude the Plaintiff from providing testimony or evidence in this case about such items. DATED this 1st day of December, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona 3101 N. Central Ave., Suite 720 Phoenix, Arizona 85012 Attorneys for Defendants

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GAONA LAW FIRM

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CERTIFICATE OF SERVICE I hereby certify that on December 1, 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: Stephen G. Montoya, Esq. MONTOYA JIMENEZ, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 I further certify that on December 1, 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/David F. Gaona

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