Free Response to Motion - District Court of Arizona - Arizona

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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 and Stolc IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred Plaintiff, v. Corrections Corporation of America, Inc.; Bruno Stolc Defendants. Defendants Corrections Corporation of America ("CCA") and Warden Stolc NO. CIV 03-2343 PHX-DGC DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE NO. 11 TO EXCLUDE EVIDENCE OF PLAINTIFF'S PRIOR SUICIDE ATTEMPTS

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respond in opposition to Plaintiff's Motion in Limine No. 11, which seeks to exclude 16 evidence of Plaintiff's suicide attempts and history of suicidal ideations occurring 17 before the alleged November, 2001, rape. Where Plaintiff claims emotional distress 18 damages as a result of the alleged rape, Defendants are entitled to present evidence of 19 pre-existing mental health conditions, including prior suicide attempts and suicidal 20 ideations, to prove an alternate cause of Plaintiff's alleged damages. 21 The reason Plaintiff was en route to FMC-Carswell when she was housed 22 overnight at CCA's prison, is because the New M exico District Court ordered Plaintiff 23 24 to the alleged rape, Plaintiff acted oddly during her criminal court proceedings, wailing 25 26
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to FMC-Carswell for a mental competency evaluation and a physical evaluation.1 Prior

See Deposition of Steve Yarbrough at pg. 12-14, attached hereto as Exhibit 1. Document 163 Filed 01/11/2006 Page 1 of 4

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and writhing on the courtroom floor. 2 While housed at CADC, the U.S. Marshals Service ordered Plaintiff be housed alone on isolation status because of a history of s attempts at suicide and harming herself.3 Yet, Plaintiff has previously testified that prior to the alleged rape, she had never felt suicidal except for one fleeting thought of it in 1994 when she was diagnosed with MS.4 Plaintiff's institutional and medical records establish, however, that Plaintiff indeed had a history of suicidal ideations and suicide attempts that pre-existed the alleged November 28, 2001 rape.5 Plaintiff claims that all mental health conditions/symptoms she has experienced since November 28, 2001, are a result of the alleged rape and not any other events or conditions experienced prior. Defendants assert that all Plaintiff's alleged emotional damages are rooted in her past, stemming in large part from her meth abuse as well as conditions which caused Plaintiff's pre-existing history of suicidal ideations/attempts. Evidence of Plaintiff's history of suicidal ideations and attempts is relevant under F ED.R.E VID . 401 and 402 as it has a tendency to make the existence of facts supporting the nature and extent of Plaintiff's claimed emotional distress damages less

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See id. at 14. See Prisoner Alert Notice, Bates No. CCA-ALL0015, attached hereto as Exhibit 2.

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See Deposition of Cheryl Allred dated 5/4/04, at 40-41, 48, 65-66, 98, attached hereto as Exhibit 3. See CCA Initial Health Screening form, Bates No. CCA-ALL00007; CCA Intake Mental Health Screening from, Bates No. CCA-ALL00008; FMC Carswell Psychology Intake Screening Summary (repeated transitory thoughts of suicide since the age of four; prior shoelace suicide attempt while in custody); USMS Tracking Form, Bates No. CCA- ALL0208 ("suicidal, used shoelace around cell door Sandoval Med Unit on 11/20/01"); Bernalillo County Detention Center Intake-Mental Health Screening Form, Bates No. CCA-ALL0238, 0241 (denying suicide attempts); FMC-Carswell Intake Screening form, Bates No. CCAALL0251 ("one suicide attempt note"); FMC-Carswell Medical History Report, Bates No. CCA-ALL 0333 (denies suicide attempts), attached hereto as Exhibit 4. 2
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probable than w ithout the evidence. Because Plaintiff raises a claim of emotional distress, this Court must permit Defendants to introduce evidence of alternate causes of her alleged damages. 6 The evidence of Plaintiff's past psychiatric history, which includes not only a history of suicidal ideations and attempts, but depression, anxiety and methamphetamine abuse, are not offered to prove Plaintiff's psychiatric condition at the time of the alleged rape. Rather, such evidence is relevant to counter Plaintiff's claims for damages of resulting PTSD, Major Depressive Disorder, suicidal ideations and attempts, generalized depression, anxiety, humiliation and fear, etc. Therefore, F ED.R.E VID . 404(a) does not prohibit the admissibility of this evidence. Evidence of Plaintiff's psychiatric past is also admissible to impeach Plaintiff's prior testimony that before the alleged rape, she did not suffer from any mental health conditions or emotional distress symptoms. The evidence is furthermore admissible to impeach Plaintiff's treating providers' opinions that Plaintiff's mental health conditions were caused solely by the alleged rape, and not a pre-existing cause. Because Plaintiff placed her mental condition at issue with her claim of damages, the probative value substantially outweighs any prejudicial effect. The evidence pertains directly to the simple issue of damages. See F ED.R.E VID . 403. For the foregoing reasons, Defendants request this Court deny Plaintiff's motion to exclude evidence of Plaintiff's history of suicide attempts, suicidal ideations as well as history of anxiety and depression.

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See Burke v. Spartanics Ltd., 252 F.3d 131, 135 (2nd Cir. 2001); Dillion v. Nissan Motor Co., Ltd., 986 FF.2d 263, 270 (8th Cir. 1993); York v. American Telephone & Telegraph Co., 95 F.3d 948, 958 (10th Cir. 1996); Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir. 1992); Gates v. Rivera, 993 F.2d 697, (9th Cir. 1993). 3

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DATED this 11th day of January, 2006. J ONES, S KELTON & H OCHULI, P.L.C.

By s/ Rachel Halvorson Daniel P. Struck Rachel Love Halvorson 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Corrections Correction of America and Stolc Foregoing filed ELECTRONICALLY this 11 th day of January, 2006 with the United States District Court, District of Arizona. COPY of the foregoing mailed even date to:

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4 Case 2:03-cv-02343-DGC Document 163 Filed 01/11/2006 Page 4 of 4 Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 and Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 Attorneys for Plaintiff, Cheryl Allred s/ Carol S. Madden