Free Memorandum - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10

Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700 Facsimile No.: (602) 263-1784 E-Mail: [email protected]; [email protected] Attorneys for Defendants Corrections Corporation of America IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred Plaintiff, v. Corrections Corporation of America, Inc.; Bruno Stolc Defendants. Defendant Corrections Corporation of America ("CCA") submits this Offer NO. CIV 03-2343 PHX-DGC DEFENDANT'S OFFER OF PROOF

11 12 13 14 15 of Proof regarding the following categories of evidence which this Court has excluded 16 at trial: (1) jail records; (2) disability application records; (3) Presentence Report; and 17 (4) live testimony of Plaintiff's mental health expert. 18 I. 19 The Court has barred Defendant CCA from introducing into evidence, 20 Plaintiff's institutional/medical files from the county jails where Plaintiff was 21 incarcerated both before and after the alleged November 28, 2001, sexual assault at the 22 Central Arizona Detention Center. 23 Admissions to Plaintiff (Defendant's Exhibit 148, already admitted into evidence), 24 Plaintiff admitted that the records constitute business records and statements made for 25 purposes of medical diagnosis pursuant to Fed. R. Evid. 803(4), 803(6). Therefore, 26 applicable hearsay objections have been waived. In response to Defendant's Requests for PLAINTIFF'S JAIL FILES

Case 2:03-cv-02343-DGC

Document 178

Filed 03/28/2006

Page 1 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

During trial, Plaintiff testified that she did not inform anyone at CADC of that alleged sexual assault because inmates do not ask for things in jail and do not make complaints. Plaintiff's jail records preceding the date Plaintiff was incarcerated at CADC are contrary to Plaintiff's testimony and therefore discredit Plaintiff's position as to the reason she did not inform any CCA personnel of the alleged sexual assault while at CADC nor any FMC Carswell personnel for one week following the alleged assault. Specifically, Plaintiff's jail files from the Sandoval County Jail show that prior to her overnight stay at CADC, Plaintiff filed no less than six inmate complaints, largely complaining about her segregation status. Post-incident, Plaintiff made

repeated complaints regarding conditions of confinement that do not begin to reach the seriousness of an allegation of sexual assault. Evidence regarding Plaintiff's conduct of complaining to prison officials regarding issues of much lesser significance than a prison sexual assault both before and after the alleged assault is relevant to Plaintiff's credibility as well as the reasonableness of her failure to report. The evidence is not cumulative as no evidence of Plaintiff's jail complaint history has been presented to the jury. Lastly, Plaintiff's grievances and inmate complaints constitute admissions and prior inconsistent statements. Next, Plaintiff has testified during this trial that she was not angry at being informed she would be placed on suicide watch while at CADC. In addition, when confronted with evidence that the morning after the alleged sexual assault Plaintiff told Nurse Bob Moore that "this is a lawsuit waiting to happen", Plaintiff denied making such a statement. Plaintiff furthermore denied that she was angry regarding the isolation/segregation status at the start of her CADC stay, categorically denying that she had ever been placed in segregation prior to her arrival at CADC. Evidence in Plaintiff's Sandoval County Jail records are directly contrary to Plaintiff's testimony

2 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 2 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

that she had never been in segregation before CADC (thus there would be no reason for her to be angry at her segregation status once arriving at CADC). Defendants should therefore be permitted to introduce evidence that discredits Plaintiff's trial testimony. Such evidence is not cumulative and is relevant to Plaintiff's credibility as well as her motivation to fabricate the assault allegations. Finally, Plaintiff has been permitted to introduce evidence regarding damages resulting from the alleged sexual assault. In short, Plaintiff has presented evidence that she suffers from PTSD and M ajor Depressive Disorder. She has also testified that she is uncomfortable around people, is scared when people are standing behind her, and that generally her personal relationships have deteriorated because of the emotional trauma cased by the alleged sexual assault. Evidence contained in Plaintiff's jail files, however, proves that Plaintiff suffered from mental health symptoms such as anxiety and depression even before the alleged sexual assault. Accordingly, Defendant asserts that evidence contained in Plaintiff's jail files is relevant to prove that Plaintiff's claimed damages in this lawsuit may be a product of prior existing conditions. The evidence is not cumulative as no evidence of prior existing conditions has been presented. Lastly, Plaintiff's statements made for purposes of medical diagnosis constitute admissions and prior inconsistent statements. If allowed, Defendant would have shown the following with respect to Plaintiff's jail records: · Bernalillo County Jail Inmate File, Defendant's Exhibit 114, attached hereto as Exhibit 1: · 7/30/01 - Plaintiff complains of suffering from increased anxiety attacks.

3 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 3 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

·

Sandoval County Jail Inmate File, Defendant's Exhibit 113, attached hereto as Exhibit 2: · 10/1/01 - 11/28/01 - Plaintiff housed in administrative segregation, on constant 15 minute watch, for attempting escape. · Undated Inmate Grievance - Plaintiff complains of segregation status resulting from an escape attempt and accusing the Jail of conducting "Mickey Mouse" hearings. · 10/2/01 - Plaintiff files Inmate Communication Form requesting a typewriter. · 11/9/01 - Plaintiff files Inmate Communication Form complaining of delay in transfer to FMC Carswell, wants appeal immediately. · 11/10/01 - Plaintiff files Inmate Communication Form complaining that another inmate is telling on her for refusing medications and that her husband was buying her commissary. Wants inmate to be told to "mind her own business." · 11/13/01 - Plaintiff files Inmate Communication Form complaining about the appeal of prior complaints. · 11/14/01- Plaintiff files Inmate Communication Form demanding to know the status of the appeal of her lockdown status. · 11/14/01 - Plaintiff files Inmate Communication Form retracting previous complaints regarding another inmate.

4 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 4 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 II.

·

Santa Fe County Jail Medical File, Defendant's Exhibit 112, attached hereto as Exhibit 3: · · 3/6/02 - Plaintiff on suicide watch. 3/9/02 - Plaintiff has access to plastic fork and matches; question of whether trying to harm herself. · 3/12/02 - Plaintiff complains of the lack of services and lack of medical care. Makes complaints "about everyone." · 3/22/02 - Plaintiff becomes very aggressive and refuses to discuss complaints regarding lack of sleep. · 5/13/02 - Plaintiff refuses a mental health evaluation.

SOCIAL SECURITY RECORDS Prior to trial, the Court granted Plaintiff's Motion in Limine to exclude

evidence that Plaintiff had applied for and been denied, disability benefits for PTSD and fibromaligia. See Order dated 1/31/06 at 4. Despite this ruling, Plaintiff offered evidence, via the deposition testimony of Queta VanWyngarden (Plaintiff's mental health expert), that VanWyngarden was attempting to aid Plaintiff in obtaining social security disability benefits because of the PTSD diagnosis provided by Queta VanWyngarden. Accordingly, Plaintiff opened the door to Defendant being permitted to respond to such evidence and to inform the jury that although Plaintiff applied for social security disability benefits, the application was denied. Such evidence is relevant to Plaintiff's damages claims and is not substantially outweighed by the danger of unfair prejudice. In addition to the above, Plaintiff's social security records contain admissions regarding the circumstances surrounding the rape allegations. Admissions, which are inconsistent with Plaintiff's trial testimony regarding the number of alleged attackers

5 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 5 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

and the circumstances of the alleged sexual assault are relevant to Plaintiff's credibility. Such admissions and prior inconsistent statements are also relevant to Plaintiff's motive to fabricate the allegations for financial gain. Here, to get social security disability

benefits because of alleged PTSD resulting from the alleged sexual assault. Finally, Plaintiff's social security disability benefits application is relevant to Plaintiff's claimed damages. Plaintiff claims she has been severely affected by the alleged sexual assault. Defendant should be permitted to offer evidence to prove that the nature and extent of Plaintiff's injuries is not as Plaintiff alleges. Evidence that Plaintiff applied for social security disability benefits based upon a PTSD diagnosis, but was denied such benefits, is relevant to the nature and extent of Plaintiff's damages claims. Such evidence is not cumulative and is not prejudicial where Plaintiff has submitted the deposition testimony of Rape Crisis Counselor Queta VanWyngarden, who stands by her PTSD diagnosis. The following is information the jury would have learned: (1) had Defendant been permitted to offer Plaintiff's social security records into evidence; or (2) had Defendant been permitted to question Plaintiff regarding her application for benefits, the information provided by Plaintiff in support of her benefits application and Plaintiff's motivation for seeking such benefits: · Social Security Records, Defendant's Exhibit 116, attached hereto as Exhibit 4. · 3/10/03 - Social Security Administration denies Plaintiff's application for benefits, finding that although Plaintiff has received a diagnosis of PTSD, the condition is not so severe as to keep Plaintiff from working and although she is anxious, there is no evidence of severe mental illness.

6 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 6 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 III. ·

·

8/31/01 - Plaintiff reports to medical provider (Gloria Quintana) that she is anxious and tearful.

·

8/15/02 - Plaintiff reports to Dr. Raul Jimenez, M.D., that "she was asked to shower and there were four men there and claims that she was raped by either two or all of them and this has caused a great deal of trauma . . ."

·

12/10/02 - Plaintiff reports to Dr. Francisco J. Marquez, M.D., that "[b]eing the only woman, they put her in the shower with four men without clothes and she was raped while the guards stood laughing."

Social Security Records - Plaintiff's Benefits Application, Defendant's Exhibit 117, attached hereto as Exhibit 5. · 10/1/02 - Plaintiff states in benefits internet medical form that she was "raped in transit to prison by 4 male inmates at the male prison" in Arizona.

PRESENTENCE REPORT At trial, the Court excluded reference to and admission of Plaintiff's

Presentence Investigation Report generated in Plaintiff's underlying criminal matters. The Court did however rule that Plaintiff's felony convictions for Conspiracy to Violate 18 U.S.C. § 472 (Uttering Counterfeit Obligations), Conspiracy to Commit Fraud and Possession of False Identifications were admissible pursuant to Rule 609(a)(2) for impeachment purposes. See Order dated 1/31/06 at 3. The Court also ruled that Defendant may present evidence regarding Plaintiff's underlying criminal proceedings, finding such evidence relevant where Defendant asserts that Plaintiff's false allegation of sexual assault was motivated by Plaintiff's mission to convince the judge in her

7 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 7 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

criminal matters that she should be released from prison and instead serve her sentence under house arrest. See Order dated 1/31/06 at 3. Plaintiff's Presentence Investigation Report constitutes a public record/report under Fed. R. Evid. 803(8) and thus is not excluded by the hearsay rule. See

Presentence Report, Defendant's Exhibit 118, attached hereto as Exhibit 6. Moreover, the presentence report contains admissions and prior inconsistent statements by Plaintiff. Namely, the report contains admissions by Plaintiff regarding: (1)

methamphetamine use preceding the alleged sexual assault; (2) depression preceding the alleged sexual assault; (3) physical and emotional abuse preceding the alleged sexual assault; and (4) withdrawn personality preceding the alleged sexual assault. These prior existing conditions arguably account for the very symptoms Plaintiff claims she now suffers from because of the alleged sexual assault. The report also contains admissions and prior inconsistent statements regarding criminal history, drug use and educational background; all of which go to Plaintiff's credibility - the ultimate issue in this case. Furthermore, the report contains handwritten notes by Plaintiff challenging statements in the Report, all of which constitute admissions by Plaintiff. Plaintiff cites the case of United States v. Kovac, 367 F. 3d 1116, 1120-21 (9 th Cir. 2004), for the proposition that the presentence report should be excluded from evidence because such reports are to be kept confidential. Kovac does not support Plaintiff's position. In Kovac, the court excluded hearsay statements made in a presentence report from being used to establish qualifications for enhanced sentencing. See id. The court did not address the admissibility of presentence reports in the civil realm, when offered to establish admissions, evidence of prior existing conditions and prior inconsistent statements.

8 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 8 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Finally, contrary to Plaintiff's assertions that criminal presentence reports are to be kept confidential, Plaintiff waived any claim to confidentiality when she herself submitted the report to the Social Security Administration as part of her application for disability. See, e.g., United States Department of Justice v. Julian, 486 U.S. 1, 108 S.Ct. 1606 (1988) (holding "[a]lthough in both civil and criminal cases the courts have been reluctant to give a third party access to the presentence report prepared for some other individual in the absence of a showing of special need, a similar restriction on discovery is not applicable when the individual requesting discovery is the subject of the report.") Moreover, the deposition testimony of Ron Travers, the author of the report, lays the proper foundation for the admissibility of the report under the business records and public records/reports exception to the hearsay rule. See Fed. R. Evid. 803(6), 803(8). M r. Travers testified that the report was prepared by him, in his capacity of a United States Probation Officer, after interviewing Plaintiff in connection with her criminal offenses. See Deposition of Ron Travers at 8-9, 11-13, attached hereto as Exhibit 7. For the foregoing reasons, this Court should have ruled that the presentence report is admissible. IV. LIVE TESTIMONY OF QUETA VANW YNGARDEN On the first day of trial, Plaintiff's counsel announced that they did not intend to call Plaintiff's mental health expert, rape crisis counselor Queta VanWyngarden, "live" at trial. Instead, counsel would simply read VanW yngarden's discovery

deposition into the record. This, despite representations to defense counsel and the Court that VanWyngarden would appear live at trial. Defendant has suffered prejudice as a result of being prohibited the opportunity to sufficiently cross examine Plaintiff's expert regarding her qualifications, methodology and foundation for her diagnosis

9 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 9 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

opinions. As a result, Plaintiff's expert's diagnosis of PTSD and M ajor Depressive Disorder stand without challenge to the witness on cross examination. In the wrongful death/personal injury case of In re Air Crash Disaster at Stapleton, 720 F.Supp. 1493 (D. Colo. 1989), plaintiffs sought to offer their airline regulation expert's deposition at trial in lieu of live testimony. See id. at 1501, 1502. The plaintiffs represented that the expert lived in California and chose not to appear at trial. See id. The court found that although Fed. R. Civ. P. 32 provides a for the presentation of deposition testimony at trial, "the rule does not alter the judicial preference for direct and cross-examination of a witness at trial. Deposition testimony is an imperfect substitute for personal testimony which should only be used when the witness is unavailable." Id. The test to determine the admissibility of deposition testimony in lieu of live testimony at trial requires balancing the following factors towards the aim of fairness: (1) the offeror's need for the evidence to be presented through the deposition, (2) opportunity provided the opponent to cross-examine the deposition witness on those issues, (3) nature of the evidence to be presented, (4) jury's need to observe the demeanor and credibility of the witness, and (5) actual unavailability of the witness, as distinguished from mere geographic distance from the courthouse. Id. at 1502. Applying this test, the court ultimately found that the plaintiff's expert was not permitted to testify via deposition where: (1) relevancy and foundation for the expert's opinions were at issue; (2) the need for the jury to observe demeanor and credibility was substantial where the deposition testimony was subject to various interpretations; and (3) the plaintiffs offered no reason for the expert's absence at trial other than he lived outside the 100 mile radius set by Fed. R. Civ. P. 32. See id. Mere inconvenience for appearance at trial by a party's expert does not outweigh "the

10 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 10 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1

unfairness of limiting an opponent's right to demonstrate varying interpretations of the facts on which the witness bases his testimony." See id. Here, like In re Air Crash Disaster, this Court should have prohibited Plaintiff from presenting her damages expert's testimony via a discovery deposition transcript. The two issues in this case are whether Plaintiff was sexually assaulted and if so, the nature and extent of her damages. Bearing heavily on these issues is the information upon which Plaintiff's expert relied in deciding that Plaintiff suffered from PTSD and Major Depressive Disorder. Because Defendant was prohibited from conducting a trial cross examination of VanWyngarden, Defendant was deprived of the opportunity to challenge the expert's qualifications, the facts upon which the expert relied in deriving her opinion and the facts the expert failed to consider in arriving at her opinion. Defendant was also denied the opportunity to cross examine the expert on evidence regarding Plaintiff's prior existing conditions learned after the expert's discovery deposition was taken. Furthermore, Defendant CCA was prohibited from cross examining VanWyngarden with respect to evidence that came out during trial, including Plaintiff's long term history of medical conditions that can cause/contribute to depression and long term drug abuse, all which must be considered in making diagnosis in accordance with the DSMIV 1 , but which were not considered by VanWyngarden when she made her diagnosis. Moreover, Defendant was also prohibited from cross examining

VanWyngarden as to the effect the lengthy set of inconsistencies in Plaintiff's sexual assault reports had on the validity of VanW yngarden's diagnosis. Finally, because

D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL D ISORDERS, F OURTH E DITION, A MERICAN P SYCHIATRIC A SSOCIATION, as relied upon by VanWyngarden in arriving at her diagnostic opinions. 11

Case 2:03-cv-02343-DGC

Document 178

Filed 03/28/2006

Page 11 of 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

VanWyngarden did not appear at trial, Defendant was not permitted to cross examine Plaintiff's expert with regards to the motivation and reasoning behind the expert's repeated efforts to convince the District Court Judge in Plaintiff's underlying criminal matters that she should be released from prison and instead serve her sentence under home arrest. Defendant asserts that this motivation is the basis for Plaintiff's false allegation of sexual assault. In sum, the jury was deprived of the opportunity to observe Plaintiff's expert's demeanor, credibility and presentation in the face of a trial examination. Plaintiff never provided the Court with any reason as to her expert's non-appearance, other than inconvenience and that she was outside of the Court's subpoena power. Because Defendant was prohibited from conducting a live trial cross examination to challenge the factual basis for VanWyngarden's diagnostic opinions, as well as her methodology and credentials, Defendant has suffered undue prejudice in defending against Plaintiff's damages claims. Inconvenience in appearing for trial does not outweigh the prejudice of limiting an opponent's right to challenge at trial, the very bases for an expert's opinions. Therefore, this Court should have prohibited expert VanWyngarden's testimony being offered via deposition testimony. This is especially where Defendant proposed on the first day of trial that a trial deposition be conducted of VanWyngarden during the evening hours, on the weekend in between the first and second week of trial or that VanWyngarden could even testify live at trial telephonically. V. CONCLUSION For the foregoing reasons, Defendant makes the above offer of proof of evidence excluded at trial.

12 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 12 of 13

1 2 3 4 5 6 7 8 9 10

DATED this 28th day of March, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/ Rachel Love Halvorson Daniel P. Struck 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Correction of America Electronically filed this 28th day of March, 2006, with the United States District Court, District of Arizona. Copies served electronically to:

Corrections

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13 Case 2:03-cv-02343-DGC Document 178 Filed 03/28/2006 Page 13 of 13 s/ Francine Gatto Leon Schydlower, Esq Law Office Of Leon Schydlower 210 North Campbell Street El Paso, Texas 79901 and Brett Duke, Esq. Law Offices of Brett Duke 4157 Rio Bravo El Paso, Texas 79902 Attorneys for Plaintiff Cheryl Allred