Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CIV-03-2300-PHX-ROS Martha Slaughter-Payne, v. Plaintiff, DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION UNDER RULES 16, 37 AND 41 SANCTION OF PRECLUSION OF WITNESSES FOR FAILURE TO COMPLY WITH DISCLOSURE REQUIREMENTS

Anthony Principi, Secretary, Department of Veterans Affairs, Defendant.

The defendant, R. James Nicholson, Secretary, Department of Veterans Affairs, by and through undersigned counsel respectfully submits his Response to plaintiff's Motion under Rules 16, 37 and 41 Sanction of Preclusion of Witness for Failure to Comply with Disclosure Requirements and entry of judgment for the plaintiff. warranted. The defendant's Response is supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 13th day of April 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney
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The defendant requests

the Court deny plaintiff's motion and requests any further relief that the Court deems

In her Motion, Plaintiff offers dismissal of this action as a possible sanction. Defendant assumes Plaintiff is seeking entry of judgment not dismissal of her own action.
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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff's Motion for sanctions is consistent with her strategy in this case ­ to use any means possible to exclude defendant's evidence so that this matter is not tried on the merits of that evidence. Those means include the filing of a Motion for sanctions which is completely without merit. Plaintiff's Motion to Strike four of defendant's lay witnesses rests solely on plaintiff's improper and baseless characterization that they are expert witnesses. Defense witnesses Mike Dole,
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Donald Huckaby, Mike Jones

and Mauricio G. Ponce

are not and have never been listed as expert witnesses. Contrary to what Plaintiff would have the Court believe, they are not subject to Rule 26 (a)(2), F.R.Civ.P., or the expert discovery cut-off date in the Court's scheduling order. As discussed more fully below, these witnesses were disclosed in an appropriate and timely manner. They are present or former VA employees whose day to day job includes matters that are relevant to the issues in this matter. Plaintiff's Motion also seeks to exclude Richard Moore and Rafael Martinez as witnesses for allegedly failing to show up for their noticed depositions. The record in this case, however, clearly shows that Richard Moore is not a VA employee and does not work or reside within the State of Arizona. Despite these facts, and without obligation to do so, defendant located Mr. Moore and arranged for plaintiff to take his deposition where he resides or telephonically. It was plaintiff who rejected these offers. As to Rafael Martinez, plaintiff's contention that he did not respond to a notice to have his deposition taken is simply false. Plaintiff never noticed the deposition of Mr. Martinez. Although plaintiff did express interest in deposing Mr. Martinez, plaintiff was told that Disclosed March 8, 2006. Docket Entry # 83. EXHIBIT E. Huckaby, Jones (now retired from VA)disclosed November 9, 2005, Docket Entry # 55. EXHIBIT C. 4 Ponce disclosed November 15, 2005, Docket Entry# 56.EXHIBIT D.
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Mr. Martinez' physician advised against it due to Mr. Martinez' medical condition. This fact, however, did not preclude plaintiff from noticing the deposition of Mr. Martinez. By failing to do so, plaintiff cannot now seek sanctions for a witness failing to show up for a deposition that was never scheduled in the first place. This lawsuit was filed on November 21, 2003. Despite having months and months to take the depositions of many of the witnesses plaintiff seeks to strike, plaintiff has taken only one deposition.
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Rather than taking depositions and engaging in discovery,

plaintiff is attempting to litigate this case by filing motions to exclude relevant evidence. ARGUMENT I. Donald Huckaby, Mike Jones, Mauricio Ponce and Mike Dole are not expert witnesses and were timely disclosed. Defense fact witnesses Donald Huckaby, Mike Jones (retired) and Mauricio Ponce were disclosed by a supplemental Initial Disclosure dated November 9 and 15, 2005, several months before the close of discovery. EXHIBITS C, D. Defense fact witness Mike Dole was timely disclosed by a supplemental Initial Disclosure on March 8, 2006. EXHIBIT E. Plaintiff's assertion that they were not disclosed until "More than a year after the close of discovery..." is clearly misleading.
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In a desperate attempt to exclude these witnesses and the evidence they will provide at trial, plaintiff characterizes them as expert witnesses subject to the March 5, 2005, expert witness disclosure deadline. Each of these individuals, however, are present or former VA employees whose regular duties do not or did not include testifying on behalf of the defendant. They are merely VA employees whose duties, responsibilities, knowledge training and experience is relevant to the issues in this matter.
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Indeed,

The deposition of John Fears, Director, Carl T. Hayden VA Medical Center, was taken on September 16, 2005. 6 Motion at page 3 line 6. 7 See Advisory Committee Notes to Rule 26(a)(2):"The requirement of a written report in paragraph (2)(B), however, applies only to those experts who are retained or
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"[personal knowledge or perception acquired through review of records prepared in the ordinary course of business, or perceptions based on industry experience, is a sufficient foundation for lay opinion testimony." Burlington Northern R. Co. v. State of Neb., 802 F.2d 994, 1004 (8th Cir.1986). These present and former VA employees were not retained or specially employed to provide expert testimony in this case. Their duties as VA employees do not include giving expert testimony on behalf of the Department of Veterans Affairs.
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Navajo

Nation v. Norris, 189 F.R.D. 610, 612-13 (E.D. Wash. 1999); Kirkland v. Union Pacific Railroad, 189 F.R.D. 604, 609 (D. Nev. 1999). The plaintiff has the burden to establish a good faith basis for the arguments presented in the Motion for Sanctions. Mere speculation and unsubstantiated comments do not establish a basis for striking these fact witnesses. Whether or not these witnesses did or did not know the plaintiff, were or were not directly involved in this dispute, or did or did not investigate the events referenced in the Amended Complaint or proposed Second Amended Complaint is simply irrelevant. Their testimony relates to, including but not limited to, VA policies, practices, procedures, job requirements, qualifications for relevant positions at the CTHVAMC, how job applications are processed, and the background, training and experience required for relevant employment positions within the VA. In other words, they will be testifying about matters they were responsible for on a day to day basis as a part of their job assignments and responsibilities as VA employees performing their official duties. Such

specially employed to provide such testimony in the case or whose duties as an employee of a party regularly involve the giving of such testimony. A treating physician, for example, can be deposed or called to testify at trial without any requirement for a written report."(1993 amendments) 8 "...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." Rule 26(a)(2)(B), F.R.Civ.P. See also, Paragraph E of Scheduling Order.
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testimony is directly relevant to plaintiff's allegations.

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It is clearly permissible for the

defendant to fully explain, by fact witness testimony, how such matters are affected by, governed by and regulated by VA policies, rules, regulations and practices. Donald Huckaby and Mike Jones (retired) will be testifying on matters pertaining to VA Information Resources Management Service policies, practices and procedures in general and with specific reference to issues in this litigation. Mr. Mauricio Ponce will be testifying regarding VA Human Resources policies, procedures and practices in general and with specific reference to issues in this litigation. Mike Dole will be testifying as to statistical data of minority employment and all related aspects of employment at the Carl T. Hayden VAMC raised by plaintiff's allegations.
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They have information useful to

the finder of fact and which is relevant to the allegations raised by the plaintiff in this litigation. Duluth Lighthouse for the Blind v. C.G. Bretting Mfg. Co., Inc., 199 F.R.D. 320, 323-24 (D.Minn., 2000). Contrary to plaintiff's assertion, these fact witnesses are not "expert witnesses." Their testimony is based on their personal knowledge gained from their work in the Department of Veterans Affairs. Rice v. Kempker, 374 F.3d 675, 681 (8th Cir., 2004); Soden v. Freightliner Corp., 714 F.2d 498, 510-12 (5th Cir., 1983). Furthermore, the Advisory Committee Notes to the 2000 Amendments to Rule 701, F.R.Evid. support the defendant's position regarding these lay witnesses: For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See,, e.g., Lightning Lube, Inc. v Witco Corp. 4 F.3d 1153 (3rd Cir. 1993)(no abuse of discretion in permitting the plaintiff's owner to give lay testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized

See paragraphs 20, 21, 23, 25-29, 31, 32, 34-36, 39-41, 44, 45, 48, 49, 51, 53 and 60 of the Amended Complaint. 10 See footnote 9.
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knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business.. The amendment does not purport to change this analysis. Instead of seeking to depose defense fact witnesses Huckaby, Jones, Ponce and Dole, plaintiff has chosen to improperly characterize them as "expert witnesses" in an attempt to preclude them from giving relevant testimony in this case. Plaintiff's Motion is meritless and must be denied. II. Richard Moore and Rafael Martinez did not fail to appear for their depositions. Plaintiff claims that witnesses Richard Moore and Rafael Martinez must be

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excluded because they failed to appear for their noticed depositions. Once again,
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plaintiff's contention is false and misleading.
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Richard Moore ceased to be an employee of the Department of Veterans Affairs on
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June 21, 2001, more than two years before this lawsuit was filed. As Mr. Moore is no
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longer a VA employee and lives in the Washington, D.C., area, he is clearly not under the
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"control" of the defendant as suggested by plaintiff's counsel. Lincoln Plaza Asso. v Dow
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Chemical Co., 1985 WL 3409 *1 (E.D.Pa. 1985.); cf., O'Toole v. United States, 284 F.2d
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792, 796 (2nd Cir. 1960)(employee retired). Plaintiff's counsel did not even request his deposition until September 7, 2005, twenty-two (22) months after filing suit and over

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four years after Mr. Moore left the Department of Veterans Affairs.
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The Secretary of the Department of Veterans Affairs has no duty to locate or
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produce a former employee, who is not a party to this litigation, for a deposition in
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Phoenix, Arizona. Nor does plaintiff's Notice of Deposition have any force or effect
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when the witness lives outside the District of Arizona. Fed.R.Civ.Proc. 45(b)(2) defines
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the subpoena power of the court.(100-mile radius). Smith v. BIC Corp. 121 F.R.D. 235,
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245 (E.D.Pa., 1988); Jaynes v. Jaynes, 486 F.2d 9, 10 (2nd Cir. 1974).

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Despite no legal obligation to do so, the defendant did locate Mr. Moore.

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He

agreed to a deposition and made himself available for a deposition in the Washington D.C. area. Plaintiff attempts to make much of the fact that she was not provided with Mr. Moore's address or telephone number. Defendant did not disclose this information, however, at the express request of Mr. Moore. Further, the Federal Privacy Act precludes the release of personal information without the express permission of the individual. 5 U.S.C.§ 552a. Nor did this fact preclude or hinder Plaintiff's ability to depose Mr. Moore. It was Plaintiff who chose not to depose Mr. Moore within the federal judicial district where he resides, offer to pay Mr. Moore's expenses to fly to Phoenix or accept the offer of a telephonic deposition. Plaintiff had more than ample opportunity and time to depose Mr. Moore. Plaintiff's motion to strike Mr. Moore as a fact witness is, therefore, specious and without merit. Rafael Martinez and Richard Moore were listed as witnesses in defendant's Initial Disclosures on August 20, 2004, and by the plaintiff on September 15, 2004. EXHIBITS A and B. Mr. Martinez did not go on authorized medical leave until June 20, 2005. Plaintiff waited until September 7, 2005, to request his deposition, some three months after Martinez went on medical leave.
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The defendant sent two letters to Mr. Martinez's Cardiologist, Dr. Nathan Laufer, M.D., regarding Mr. Martinez' medical condition and ability to appear at a deposition. EXHIBITS F, G. In response, Dr. Laufer provided the information contained in his letters dated September 19 and October 24, 2005. Plaintiff's EXHIBITS 3 and 8.

Mr. Moore is now employed by the Department of Homeland Security. The plaintiff was well aware of Mr. Martinez's absence due to authorized medical leave. See, plaintiff's EXHIBIT 9. Her unexplained failure to take his deposition in a timely manner waives her right to depose him or seek sanctions, after the close of discovery, against the defendant.
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Plaintiff's counsel was advised that the United States would be unable to produce Mr. Martinez as a result of Dr. Laufer's medical evaluation. EXHIBIT H. Plaintiff never noticed the deposition of Mr. Martinez. If that had occurred, defendant would have had the opportunity to move to quash the notice or seek a protective order. By failing to notice the deposition of Mr. Martinez, plaintiff cannot now seek sanctions for Mr. Martinez failing to appear for a deposition that was never noticed. Plaintiff's contention that defendant has sought to hinder her from deposing these witnesses is simply not true. In fact, towards the end of November, 2005, the parties discussed and defendant agreed to seeking an extension of time to deal with the depositions of Mr. Moore, Mr. Martinez and other discovery matters. This is documented in a fax dated November 29, 2005 from defense counsel to plaintiff's counsel. EXHIBIT I. A stipulation and proposed Order was filed on November 29, 2005 [Docket Entry # 60] . The stipulation specifically mentions Mr. Martinez and Mr. Moore and otherwise requested extended discovery deadlines. Subsequently, information was received that Mr. Martinez would be able to provide a telephonic deposition and plaintiff's counsel was so advised. He rejected the offer. Despite the fact that the Court amended the Scheduling Order on December 9, 2005 [Docket entry# 70], no further communication, prior to March 27, 2006, was received from plaintiff's counsel regarding these two depositions. Therefore, despite an express extension of time to accomplish these depositions, plaintiff chose not to depose them and instead, on the last day of discovery, filed yet another motion to exclude witnesses for evidence. Plaintiff's motion must be denied as to Moore and Martinez.

III.

Plaintiff chose not to take the depositions of the witnesses at issue and has not suffered prejudice. Without any basis in law or fact, Plaintiff accuses defendant of dilatory practices

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and seeking to surprise Plaintiff at trial. It is Plaintiff, however, that is engaging in ambush tactics by seeking to improperly exclude witnesses that can provide relevant and probative evidence at trial. As stated above, fact witnesses Donald Huckaby, Mike Jones (retired) and Mauricio Ponce were disclosed in November, 2005, several months before the close of discovery. EXHIBITS C, D. Plaintiff never requested to take their depositions. Nor did Plaintiff ever suggest, until filing the Motion, on March 27, 2006 (the last day of discovery), that she viewed these witnesses as expert witnesses. The same is true regarding fact witness Mike Dole, who was timely disclosed by a supplemental Initial Disclosure on March 8, 2006. EXHIBIT E. Plaintiff had ample opportunity and time to raise this supposed "expert witness" issue and to depose these witnesses if there truly was a desire to do so. Instead, plaintiff waited until the close of discovery and now asks this Court to exclude the witnesses. Plaintiff also had sufficient opportunity to depose Mr. Moore and Mr. Martinez. It was Plaintiff's choice not to depose Mr. Moore where he resides, offer to pay his expenses to appear in Phoenix or depose him telephonically. It was Plaintiff's choice not to notice or otherwise seek to depose Mr. Martinez after the discovery deadline was extended on December 9, 2005. Ironically, now Plaintiff asks the Court to punish the defendant for the choices made by Plaintiff. Any prejudice suffered by Plaintiff is a result of her own choices and not due to any conduct of the defendant. The Motion must be denied. CONCLUSION For the foregoing reasons, defendant requests that plaintiff's Motion be denied. Further, the defendant requests any further relief that the Court may deem appropriate.

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Respectfully submitted this 13th day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s\ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on April 13, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Rosval A. Patterson Attorney at Law Patterson & Associates, P.C. 777 East Thomas Road # 210 Phoenix, Arizona 85014 Attorney for plaintiff Dana Heck, Attorney Office of Regional Counsel Department of Veterans Affairs 650 East Indian School Road, Building 24 Phoenix, Arizona 85012-1839 3225 North Central Avenue, Room 305 Phoenix, Arizona 85012 s\ John R. Mayfield Office of the U.S. Attorney

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