Free Response to Motion - District Court of Arizona - Arizona

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GAONA LAW FIRM
A PROFESSIONAL CORPORATION

3101 NORTH CENTRAL AVE, SUITE 720 PHOENIX, ARIZONA 85012 _____________

(602) 230-2636 Fax (602) 230-1377

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. No. CV04-0289 PHX MHM DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE RE: ANTICIPATED TESTIMONY OF DEFENDANT FRANK PERALTA

Defendants City of Phoenix, Frank Favela, and Frank Peralta respond to Plaintiff's Motion in Limine Regarding the Anticipated Testimony of Defendant Frank Peralta, and respectfully request that Plaintiff's motion be denied. Plaintiff's Motion in Limine is untimely. When counsel for the parties stipulated to extend other pre-trial deadlines, Plaintiff's counsel specifically excluded the deadline to file motions in limine. Defendant's filed their motions in limine, timely, on Monday, November 14, 2005, pursuant to this Court's Order (which was not extended by stipulation). Notwithstanding the untimeliness of Plaintiff's Motion, Defendant Frank Peralta's testimony about his service in Vietnam and Desert Storm, and that he has, in

Case 2:04-cv-00289-MHM

Document 46

Filed 11/21/2005

Page 1 of 3

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

fact, been diagnosed as suffering from Post Traumatic Stress Disorder (PTSD), does not lack foundation. Indeed all of these facts makes up the very foundation of who Mr. Peralta is as a person. Mr. Peralta is entitled to tell the jury his background and establish the foundation of who he is. Those facts assist the jury in assessing his credibility and demeanor. Plaintiff's complaints of prejudice are meritless. Mr. Peralta does not intend to render any medical or psychological causation opinions, as Plaintiff claims. Similarly, it is anticipated that Plaintiff, without expert medical or psychological evidence or support, will testify that she has and continues to suffer from stress. If Plaintiff's counsel is correct, Plaintiff must also be precluded from using psychological or medical terms, because to do so is without foundation and prejudicial. Plaintiff has cited no rule of evidence or case opinion that prevents Mr. Peralta from testifying that he is a Veteran, about his service to his Country, and, that he suffers from various medical and psychological maladies including post traumatic stress disorder. Plaintiff's motion should be denied. DATED this 18th day of November, 2005. GAONA LAW FIRM /s/David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for Defendants

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GAONA LAW FIRM

2 Case 2:04-cv-00289-MHM Document 46 Filed 11/21/2005 Page 2 of 3

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

CERTIFICATE OF SERVICE I hereby certify that on November 21, 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 Attorneys for Plaintiff I further certify that on November 21, 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

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GAONA LAW FIRM

s/David F. Gaona

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