Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Brett Duke, Texas Bar # 24012559 The Law Offices of Brett Duke, P.C. 4157 Rio Bravo El Paso, Texas 79902 915-875-0003 915-875-0004 (facsimile) [email protected] Attorney for Plaintiff, Cheryl Allred
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred NO. CIV 03-2343 PHX-DGC Plaintiff, v. PLAINTIFF'S OMNIBUS RESPONSES TO ALL DEFENDANTS' MOTIONS IN LIMINE

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Corrections Corporation of America, Inc., and Bruno Stolc,

Defendants. Plaintiff files this, her Omnibus Responses to Defendants' various Motions in Limine.

MOTION TO STRIKE The governing pretrial order limits limine motions to three pages. Defendants have filed 24 pages-worth of motions in limine that should be stricken for violating the pretrial order. This response is limited to three pages to comply with the order, but Plaintiff prays for leave to supplement and amplify the arguments and supporting materials during the pretrial hearing. CCA'S INVESTIGATION OF RAPE The "investigation" at issue is a one-page document, generated during a one-day records review, that list Allred's arrival and departure time; her designation to the health unit and reasons for it; a conclusion about whether or not she was ever exposed to male inmates; and whether Allred ever made an outcry while at the facility. From the pleadings on file in the case, Defendants will contend at trial no rape occurred, and base this contention on the very facts and conclusions contained in the "investigation" at issue. Defendants have thus put squarely at issue the conclusions reached and the facts and statements on which they are based. Precluding this investigation would allow CCA to parrot its conclusions in

Case 2:03-cv-02343-DGC

Document 156

Filed 01/11/2006

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arguing that the rape did not occur without affording Plaintiff the opportunity to challenge these conclusions or their supporting bases ­ compromising Plaintiff's ability to negate Defendants' contentions on liability. QUETA VAN WYNGARDEN Defendants next move to exclude Queta Van Wyngarden's testimony (rape counselor) because of ostensible failure to comply with Fed.R.Civ.P. 26(a)(2)(B). Ms. Van Wyngarden was a treating provider, is not retained by Plaintiff's counsel, and thus does not fall within the ambit of the rule, which applies "to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony." Defendants took Ms. Wyngarden's deposition and collected Plaintiff's entire medical file from Ms. Wyngarden's office, but glaringly omit from their limine motion the facts, data, principles, methods or applications that Ms. Wyngarden employed that they deem substandard. Ms. Wyngarden is masters-degreed rape counselor who has counseled hundreds if not thousands of rape trauma victims, and diagnoses PTSD regularly as part of her duties. As will be presented during the hearing in the motion in limine, Ms. Wygarden's testimony will assist the trier of fact in understanding the injuries that Ms. Allred suffered as a result of the rape, and will explain the facts and data on which her testimony is based and the reliable methods employed in Ms. Allred's particular case FRE 702. PRIOR SEXUAL ASSAULT Defendants seek to exclude evidence of a previous sexual assault of a female inmate in the same location in the jail, by another roving inmate. As is explained supra, Defendants contend that the rape never occurred, and in support of this defense have contended in deposition testimony that female inmates are never left alone and isolated with male inmates. The occurrence of a previous instance in which another female inmate was left alone and isolated, and later assaulted by a roving male inmate, contradicts Defendants' contention that Plaintiff's rape was impossible because of the protection Defendants afford female inmates. Defendants' relevancy arguments are thus negated, and

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although not a "bad act" for 404(b) purposes, even if it were, the prior instance would be admissible under the "opportunity" prong of FRE 404(b). CCA'S CONTRACT WITH THE UNITED STATES MARSHAL'S SERVICE At the pretrial hearing, the contract at issue will be presented to allow the Court to ascertain the extent to which the contract mandates certain policies and procedures for inmate safety. The extent to which these mandates were violated goes to the extent to which CCA violated its duty to Allred. INMATES WITH ACCESS TO ALLRED The identities, characteristics, and records of the male inmates who had access to Allred during the time of her gang rape is information the jury can evaluate to gauge the extent to which she was in fact exposed to violent sex offenders ­ thereby tending to make a fact at issue in this case (gang rape by violent sex offenders while left alone) more probable, and thus, relevant. DEFENDANTS' PERSONNEL FILES The training and experience of Defendants' employees, or lack thereof, goes to the extent to which said employees' incompetence, inexperience, or malice led to Plaintiff being left alone and isolated such that she could be gang raped. Moreover, the credibility of a witness is always at issue. Thus, personnel records are, and should be, proper subjects for cross examination and impeachment. PRAYER For these reasons, the Plaintiff requests the Court to deny each of the defendants' motions in limine.
The Law Offices of Brett Duke, P.C. /s/ Brett Duke Brett Duke 4157 Rio Bravo El Paso, Texas 79902 Attorney for Plaintiff, Cheryl Allred ORIGINAL/COPY of the foregoing served this 11th day of January, 2006 to: Daniel P. Struck / Rachel Halvorson, Jones, Skelton & Hochuli, P.L.C., 2901 N. Central Ave., Suite 800, Phoenix, Arizona 85012. /s/ Brett Duke

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