Free Order on Motion to Strike - District Court of Arizona - Arizona

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 27 28 A Final Pretrial Conference was held on January 25, 2006. Counsel appeared on ) ) Plaintiff, ) ) ) vs. ) ) Corrections Corporation of America, Inc.;) ) and Bruno Stolc, ) Defendants. ) ) ) Cheryl Allred, No. CV-03-2343-PHX-DGC ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

behalf of Plaintiff and Defendant. On the basis of the parties' writ ten submissions and the hearing, IT IS HEREBY ORDERED: 1. 2. Trial in this matter shall begin on March 21, 2006, at 9:00 a.m. The t rial shall last six days (M arch 21-24, 28-29, 2006). Plaintiffs shall be T he

allotted 15 hours of trial time and Defendants shall be allotted 15 hours of trial time. Court will keep track of each side's time.

Opening and closing statements, direct

examination, and cross-examination shall be counted against the parties' allotted time. 3. A final conference shall be held on March 16, 2006, at 4:00 p.m. in

Courtroom 603, Sandra Day O'Connor Federal Courthouse, 401 West Washington Street,

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Phoenix, Arizona 85003. Out-of-state counsel may participate by telephone. 4. The parties' proposed final pretrial order shall govern the pres entation of Evidence, objections, legal argument s , and relief not On or before

evidence and other trial issues.

requested or ident ified in the order shall not be available at trial.

February 10, 2006, Plaintiff shall provide Defendant with summaries of the testimony to be provided by medical provider witnesses at trial. 5. In respons e t o an is sue raised in the parties' proposed final pretrial order, the

Court ruled that Defendant Stolc is no longer in the case. The sole remaining is s ue in this case ­ negligence ­ was asserted in Plaintiff's complaint only Corrections Corporation of America ("CCA"). 6. F or reasons stated on the record, the Court denied Plaintiff's M otion in against Defendant

Opposition to Juror Note Taking (Doc. #155). 7. The Court addres s ed Plaintiff's M otion to Exclude Testimony of Phillip Esplin

(Doc. #137). The Court granted the motion with respect t o D r. Es p lin's opinions 2 and 4. Witness credibility, including the credibilit y of Plaintiff, is an issue for the jury to determine and not p roperly the subject of expert testimony. See 4 J. Weinstein & M argaret A. Berger, Weinstein's Federal Evidence § 702.06[1][a] (2d ed. 2005). The Court will deny the motion with respect to Dr. Esplin's opinions 1 and 3, but in rendering t hes e op inions Dr. Esplin should not opine on the credibility of Plaintiff. 8. For reasons stated on the record, the Court granted Plaintiff's M ot ion to

Strike Appendices (Doc. #154). D efendant s will not be permitted to use the exhibits to Dr. Esplin's testimony produced to Plaintiff on January 3, 2006. 9. The Court addressed Plaintiff's M otion in Limine (D oc. #138). Because the

motion includes 11 subparts, the Court will address them separately by t he paragraph number included in Plaintiff's motion. a. The Court granted the motion with resp ect t o Paragraph 1. Defendant

shall not make any mention of Plaintiff having filed a motion in limine. b. The Court denied the motion with respect to paragraph 2 of Plaint iff's
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motion. The paragraph is too vague for a ruling. c. With res p ect to paragraph 3, the Court denied the motion with respect

to Plaintiff's conviction in the United States District Court for the District of New M exico for conspiracy to commit fraud in connection with identification documents and The Court also denied the

possession with intent t o use false identification documents.

motion with respect to Plaintiff's conviction for cons p iracy to violate 18 U.S.C. § 472. Because these convictions concern crimes of dishonesty, the Court concluded that t hey are admis s ible in evidence under Federal Rule of Evidence 609(a)(2). The Court granted

the motion with respect to Plaint iff's conviction for possession of methamphetamine and conspiracy to p os sess methamphetamine. The Court concluded that the potential

prejudicial effect of these convictions outweighs their probative value and therefore granted the motion under Federal Rule of Evidence 403. The Court also made clear that

Defendants may introduce evidence concerning the criminal proceedings in which Plaintiff was involved at the time of the alleged rape, including the proceedings that occurred following the alleged rape and during which Plaintiff reported the rape. was denied with respect to such proceedings. d. With respect to paragraph 4 of P laint iff's motion ­ evidence Plaintiff's motion

concerning Plaintiff's 1991 arrest and relat ed events ­ the Court granted Plaintiff's motion wit hout p rejudice to Defendant seeking to introduce such evidence at trial. Because the

Court cannot determine the relevancy of such evidence at this time, the motion will be granted, Defendant should not mention these events during opening statement, and Defendant should raise these issues with the Court out s ide of t he hearing of the jury if it desires to introduce such evidence during trial. e. With respect to paragraph 5 of Plaintiff's motion, the Court found

Plaintiff's request to be too vague and therefore denied the motion. f. With respect to paragraph 6 of Plaintiff's motion, the Court found

Plaintiff's request to be too vague and therefore denied the motion. g. With respect to paragraph 7, the Court granted the mot ion without
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prejudice t o D efendant seeking to introduce evidence of Plaintiff's prior drug use outside the hearing of the jury. The Court will be better equipped to address the relevancy of this evidence at trial. h. With respect to paragraph 8, the Court granted Plaintiff's motion.

Defendant shall not mention the fact that Plaintiff's case is being handled on a contingent fee basis. i. With res p ect to paragraph 9, the Court granted the motion without

prejudice t o Defendant's seeking to introduce evidence at trial concerning the denial of Plaintiff's application for s ocial security and unemployment benefits. better equipped to address the relevancy of this evidence at trial. j. With respect to paragraph 10, the Court granted Plaintiff's motion The Court will be

without prejudice to Defendant's right to seek to introduce evidence at trial concerning Plaintiff's prior divorce and abort ion. relevancy of this evidence at trial. k. With respect to paragrap h 11 of Plaintiff's motion, the Court ruled that The Court will be better equipped to address the

D efendant can introduce evidence of Plaintiff's suicidal tendencies insofar as it relates t o the manner in which P laint iff was classified and incarcerated at Defendant's facility on the night in question. The Court granted the motion in limine with respect to evidence of prior suicide attempts or information, but without prejudice to Defendant's right to seek to introduce such evidence at trial if it concludes that the evidence becomes relevant. 10. The Court addressed Defendant 's M otion in Limine to Exclude Evidence of

CCA 's Post-Incident Investigation of the Alleged Rape (Doc. #142). The Court took t his motion under advisement. The Court will deny the mot ion. T he Court concludes that

CCA's inves t igat ion into whether or not the rape occurred is relevant to a central issue at trial ­ whether or not the rape occurred. The Court concludes that the potential prejudice

of this evidence does not outweigh its relevance. 11. The Court addressed Defendant's M otion in Limine to Exclude Testimony

of Rape Crisis Counselor (Doc. #143). The Court t ook t his motion under advisement. The
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Court will deny the motion.

The Court concludes that M s. Van Wyngarden was not

required to produce an expert report because s he w as a treating medical provider and therefore was not retained or specially employed to provide exp ert testimony in this case. See F. R. Civ. P. 26(a)(2)(B). The Court also concludes that M s. Van Wyngarden's t raining and experience in rap e counseling qualifies her to state opinions concerning her diagnosis of Plaintiff as suffering from P T SD and depression disorder. The Court will not exclude this testimony under Federal Rule of Evidence 702. Defendant will, of course, be free to crossexamine M s. Van Wyngarden concerning the basis for her diagnoses. As noted above,

the Court will also permit D r. Es p lin to opine on the reliability of M s. Van Wyngarden's diagnoses. 12. The Court addressed Defendant's M otion in Limine to Exclude Evidence of The Court granted the motion

Prior 1999 Allegation of Fondling Incident (Doc. #144).

without prejudice to Plaintiff seeking to introduce evidence of the incident at trial. P laintiff must raise this issue outside the hearing of the jury. The Court will be better equipped at trial to determine the relevancy of this evidence. 13. The Court address ed D efendants' M otion in Limine to Exclude

Employment/Personnel information of CCA Witnesses at Trial (Doc. #147). motion was too vague and general, it was denied. 14.

Because the

The Court considered Defendants' M otion in Limine to Exclude Institutional

F ile Information of Inmates Processed into Prison at the Same Time as Plaintiff (Doc. #146). For the reasons stated on the record, the Court gran te d t he motion. The Court concludes that the potentially prejudicial effect of this evidence outweighs its marginal relevance. 15. The Court addressed Defendants' M ot ion in Limine to Exclude the CCA-

United States M arshals Service Cont ract at Trial (Doc. #145). Because Plaintiff withdrew her opposition to this motion at the hearing, it was granted by the Court. 16. The Court directed the parties to re-submit dep osition designations at the

hearing on M arch 16, 2006. The parties noted that they will seek to streamline deposition presentations in light of t he Court's time limits for the trial.
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The Court encouraged the

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parties to consider stipulating to summaries of testimony from particular witnesses. 17. The Court advised the parties that the trial date may get pre-empted by a

pending criminal case. If it does, this case mos t likely w ill be assigned to a visiting judge for trial. 18. The Court provided the parties with the Court's Proposed Preliminary Jury T hes e proposed instructions and voir

Instructions and Voir Dire dated January 25, 2006.

dire will be discussed at the hearing to be held on M arch 16, 2006. DATED this 31st day of January, 2006.

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