Free Motion in Limine - District Court of Arizona - Arizona

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GAONA LAW FIRM
A PROFESSIONAL CORPORATION

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

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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. No. CV04-0289 PHX MHM
DEFENDANTS' AMENDED MOTION IN LIMINE NO. 3 REGARDING DAMAGES AND OTHER EVIDENCE NOT DISCLOSED IN ANSWERS TO INTERROGATORIES

Defendants, City of Phoenix, Frank Favela and Frank Peralta respectfully request this Court issue its pretrial order in limine precluding the Plaintiff from introducing any evidence relating to damages in this matter before the jury that was not disclosed and that was the subject of pretrial discovery requests that were never disclosed. In particular, the Defendants sought from the Plaintiff various matters allegedly supporting Plaintiff's damages. Plaintiff, however, did not respond to those production requests and therefore, the Plaintiff should be precluded from testifying relative to specific damages in this case. In addition, Defendants' propounded Non-

Case 2:04-cv-00289-MHM

Document 39

Filed 11/15/2005

Page 1 of 5

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

Uniform Interrogatories that were not responded to. Plaintiff must be precluded from testimony about each of the topics covered in the un-responded to Interrogatories. DATED this 14th day of November, 2005. GAONA LAW FIRM /s/ David F. Gaona David F. Gaona 3101 N. Central Ave., Suite 720 Phoenix, Arizona 85012 Attorneys for Defendants MEMORANDUM OF POINTS AND AUTHORITIES The plaintiff was deposed in this case. In her deposition, she testified that she was entitled to various general categories of damages in this case. The Plaintiff, however, could not, other than her own testimony, produce a document or provide any specifics of time she claims to have spent away from the work place because of stress attributable to the Defendants' actions. Following Plaintiff's deposition, discovery requests were propounded, as well as Requests for Production and Non-Uniform Interrogatories. Despite the Defendants' best efforts at following up seeking responses, responses were not forthcoming. Consequently, the Plaintiff should be precluded, before the jury, from testifying with respect to her claims that she missed work due to stress associated with the events for which she is complaining. It is easy to say that "I missed work"; however, it is a far different thing to prove the specific dates upon

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GAONA LAW FIRM

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which the work was missed and the reason for that missed work. Defendants sought that information, but it was not forthcoming. Defendants obviously sought such

information to examine and conduct necessary follow up to determine if the Plaintiff's claims were credible about time away from work, and the reasons for being absent from work. Failure to provide such information, and provide Defendants an

opportunity to examine and test such claims, provides the basis upon exclusion of such evidence. In addition, the jury should not be in a position to hear testimony that "I missed work due to stress" and then be permitted to speculate about how much work when "how much" and back up documents were never disclosed or provided. In addition, attached is a copy of the Non-Uniform Interrogatories propounded but never answered. Plaintiff must be precluded from testifying or presenting evidence that will now otherwise answer each of those interrogatories. For these reasons, the Defendants respectfully request this Court issue its pretrial order, in limine, precluding the Plaintiff from discussing any issue relating to missed work and wages pertaining to stress (i.e., back pay lost) due to her inability to quantify, prior to trial, any such claim. /// /// /// ///

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GAONA LAW FIRM

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

DATED this 15th day of November, 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 November 15, 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 November 15, 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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