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. 10 TO EXCLUDE EVIDENCE OF PREVIOUS DIVORCE, ABORTION, FAMILY AND FAMILY HISTORY

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respond in opposition to Plaintiff's Motion in Limine No. 10, which seeks to exclude 16 evidence of Plaintiff's "personal life such as previous divorce, abortion, family, and 17 family history." 18 First, Defendants are unable to assume what specific "personal life", "family" 19 and "family history" evidence Plaintiff intends to exclude at trial. Accordingly, as set 20 forth below, Defendants reserve the right to seek to admit contradictory evidence 21 regarding Plaintiff's family history should Plaintiff open the door to the admissibility 22 of such evidence at trial. 23 Second, Defendants do not intend to offer evidence of Plaintiff's previous 24 divorces or abortion at trial. However, such evidence may become relevant under Fed. 25 R. Evid. 401 and 402 should Plaintiff open the door to the admissibility of such 26 evidence for impeachment purposes regarding Plaintiff's damages claims. For

Case 2:03-cv-02343-DGC

Document 158

Filed 01/11/2006

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example, Plaintiff on direct examination may wish to give a detailed account of her life, including prior marriages, children, etc. Should Plaintiff testify inconsistent with deposition testimony previously provided, statements made to medical providers for purposes of diagnosis or to Defendants' psychology expert, Dr. Esplin, this subject matter becomes admissible for impeachment purposes under Fed. R. Evid. 801(d)(2) as an admission by a party opponent. In addition to the above, Under Fed. R. Evid. 401 and 402, evidence regarding Plaintiff's prior divorces and/or abortion have a tendency to make the nature and extent of Plaintiff's damages claims less probable than it would be without the evidence, should Plaintiff testify at trial that she had experienced absolutely no stressful events in her life prior to the alleged rape and had never had any relationship problems. "Evidence is relevant simply if it tends to make a witness' testimony more or less credible." 1 J. Weinstein & M . Berger, Weinstein's Evidence ¶ 401[05]. Next, this evidence is also not prohibited by Fed. R. Evid. 404. Family history evidence is not offered to prove conduct in conformity. Rather, such evidence is offered to contradict any evidence proffered by Plaintiff that before 2001, Plaintiff had never experienced any relationship problems with anyone in her life. Any statements offered by Plaintiff at trial contradict previously provided family history evidence also does not run afoul of Fed. R. Evid. 608 where such inconsistent statements are admissible under Fed. R. Evid. 801(d)(2) as an admission by a party opponent. Finally, should family history evidence become relevant as proffered by Plaintiff and to which there are established inconsistencies in Plaintiff's statements, to exclude such evidence would result in prejudice to Defendants under Fed. R. Evid. 403. The probative value of inconsistent reporting of family history is substantially outweighed by the danger of unfair prejudice to Plaintiffs. There is no danger of

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confusion of the issues or misleading the jury where such evidence will be presented only if Plaintiff claims that prior to November 28, 2001, she had never had any relationship problems during her life. The evidence is straightforward and relates only to the issues of impeachment and damages. Based upon the foregoing, Defendants request this Court deny Plaintiff's motion to exclude evidence of Plaintiff's family history should Plaintiff's testimony to the contrary open the door. DATED this 11th day of January, 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 Corrections Correction of America and Stolc Electronically filed this 6th day of January, 2006, with the United States District Court, District of Arizona. Copies served electronically to: Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 and

21 22 23 24 25 /s/ Francine Gatto 26 3 Case 2:03-cv-02343-DGC Document 158 Filed 01/11/2006 Page 3 of 3 Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 Attorneys for Plaintiff Cheryl Allred