Free Response in Opposition to Motion - 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

AUGUSTINE B. JIMENEZ III State Bar # 012208 Montoya Jimenez, P.A. 3200 N. Central Avenue, Suite 2550 Phoenix, Arizona 85012-2490 (602) 263-7875 [email protected] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Palma Baca Urrutia, et al., Plaintiffs, vs. Darrell Lee Ekdahl, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 03 1990 PHX PGR RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO PRECLUDE PLAINTFFS' NEWLY DISCLOSED EVIDENCE; CASINO CHIPS, $100 BILLS, WALLETS AND CLOTHING EVIDENCE; MOTION FOR ADVERSE JURY INSTRUCTION FOR SPOLIATION OF EVIDENCE

Plaintiffs hereby respond to Defendants' two motions. Plaintiffs will address the motion in limine first, followed by Defendants' motion for adverse jury instruction for spoliation. The Court should deny Defendants' Motion in Limine because Plaintiffs did not have prior reason or need to disclose the additional testimony, and/or because the information Defendants seek to preclude was contained in the Medical Examiner's autopsy reports which Defendants have had for years. The Court should deny Defendants' Motion for Adverse Jury Instruction for Spoliation because the "evidence" was not relevant and Plaintiffs did not know of, control or have possession of the "evidence," and thus could not have committed spoliation.

-1-

Case 2:03-cv-01990-PGR

Document 172

Filed 08/18/2006

Page 1 of 8

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

I.

Introduction. Defendants' motions are an attempt to distract the Court from

Defendants' untimely disclosure of expert opinions proposed two years after experts and reports were required to be disclosed. The recent series of pleadings, including the one at hand, are all tied to Defendants' untimely disclosure. II. Procedural History. The procedural history which precipitated the motion at hand is as follows: · Jose and Javier Urrutia were killed when their vehicle was rear-ended by Defendant Darrell Lee Ekdahl on May 22, 2003. · The Department of Public Safety conducted an investigation regarding this matter and released the report approximately 30 days thereafter. · On June 13, 2003, the Medical Examiner issued autopsy reports finding that the body found behind the steering wheel was that of Jose Urrutia and that the body found immediately outside the passenger door was that of Javier Urrutia. · Plaintiffs filed suit on October 14, 2003. · Pursuant to the Court's Scheduling Order of May 19, 2004, Defendants were required to disclose their experts with reports by August 16, 2004. · Discovery in this matter closed on February 15, 2005. · Defendants never raised the contention that Javier Urrutia was the driver of the vehicle during the litigation. · Defendants first raised the contention that maybe Javier was the driver of the Urrutia vehicle on January 3, 2006, in the initial Joint Pretrial Statement, nearly a year after the close of discovery.

-2-

Case 2:03-cv-01990-PGR

Document 172

Filed 08/18/2006

Page 2 of 8

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

· On March 13, 2006, 13 months after the close of discovery and two years after Defendants' expert disclosures were due, Defendants were queried by the Court regarding Defendants' suggestion that Javier may have been the driver of the Urrutia vehicle. · Thereafter, defense counsel traveled to New Jersey to meet with Dr. Zhang, the medical examiner who had previously examined the bodies. Defense counsel presented Dr. Zhang with various documents and photographs to obtain an opinion that perhaps Javier's body was that found behind the steering wheel of the Urrutia vehicle. · On July 6, 2006, Defendants' untimely disclosed that Dr. Zhang now believed Javier may have been the driver of the Urrutia vehicle. · On July 17, 2006, Defendants moved to reopen discovery and filed a motion to compel DNA testing. · On July 17, 2006, the parties filed their Amended Joint Pretrial Statement (JPTS). · On July 18, 2006, Plaintiffs filed a motion in limine to preclude Dr. Zhang's new opinions. · On August 3, 2006, Plaintiffs filed their response opposing Defendants' motion to reopen and motion to compel. · On August 9, 2006, Defendants filed the subject Motion in Limine/ Motion for Adverse Jury Instruction. III. Analysis. A. Plaintiffs Did Not Violate Disclosure Rules. Although it is unclear from their Motion, it appears that Defendants contend that Plaintiffs violated FRCP 26 with respect to the disclosure of additional expected testimony in the July 17, 2006, JPTS. Initially, it should be clear to the Court that the information Defendants seek to preclude only

-3-

Case 2:03-cv-01990-PGR

Document 172

Filed 08/18/2006

Page 3 of 8

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

became relevant after Defendants' untimely disclosure of Dr. Zhang's new expert opinion suggesting the Javier was the driver of the Urrutia vehicle. Rule 26(a)(1)(A) requires the disclosure of individuals likely to have discoverable information that the party may use to support its claims, identifying the subjects of the information. Plaintiffs duly complied with this disclosure in their initial and subsequent disclosures. Similarly, FRCP 26 requires Defendants to disclose the names of individuals and documents to support their defenses. Because Defendants never raised the defense or claim that Javier Urrutia was the driver of the Urrutia vehicle during discovery, Plaintiffs had no way of knowing that information they provided to DPS and the Medical Examiner regarding the clothing worn by the deceased and the fact that Jose Urrutia was carrying cash in large denominations might be relevant. Thus, under FRCP 16 disclosure was not necessary or required. If Defendants had raised the contention that Javier Urrutia was the driver of the Urrutia vehicle at any time during the litigation, the relevance of the clothing worn by the deceased and the fact that Jose Urrutia was carrying cash in large denominations and that Javier did not normally use a wallet would have become clear and disclosure would have been made. To accept Defendants' arguments would require Plaintiffs to anticipate that Defendants would raise this issue three years after the death of the decedents and two years after Defendants were required to disclose experts and reports. Just as important is the fact that Defendants had the very information they seek to preclude years ago. The amendment to the Medical Examiner's Report of Investigation dated June 13, 2003, regarding Case No. 03-01652, identifies the remains as those of Jose Luis Arrieta Urrutia. At page 5 of the report, under "Final Summary," it states: Based on the autopsy findings and investigative history, as available to me, it is my opinion that Jose Luis Arrieta

-4-

Case 2:03-cv-01990-PGR

Document 172

Filed 08/18/2006

Page 4 of 8

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

Urrutia, a 55-year-old Caucasian male, died as a result of thermal burns due to motor vehicle accident. At page 2 of the report, under "Clothing and Personal Effects," it states: The burned possible jacket and a towel are identified around the burned amputated right foot with a burned wallet containing a small corner of a $100 bill. The remaining unburned and partially burned clothing and personal belongings are submitted to the police as evidence. A small piece of partially burned clothing is also submitted in a sealed glass jar for future accelerant study. Defendants themselves disclosed these reports in their Initial Disclosure Statement of May 7, 2004. (See page 10 of Exhibit 1 attached hereto.) Therefore, the information is not newly disclosed Defendants' argument that no DPS officer has so testified regarding Plaintiffs' statement supports Plaintiffs' point. The identity of the driver was never raised in discovery, and no DPS officer was ever asked. However, Plaintiffs spoke to Officer Garcia regarding the deceased, including who was driving, and provided information to the Medical Examiner's office to assist in the identification. In regards to the two Gila River Casino chips that Plaintiffs saw at the scene a few days after the crash, Plaintiffs had no reason to believe that the casino chips were relevant to any of the issues in this case. Plaintiffs have no personal knowledge as to what the deceased did once they left Plaintiff Patricia Urrutia's Glendale home that fateful evening. The relevance of the casino chips did not become clear until after Defendants suggested that Javier Urrutia was the driver of the Urrutia vehicle, and that Jose Urrutia must have pulled his truck into the emergency lane to switch positions with Javier. Once these contentions were made, the casino chips became relevant because they showed that the deceased may have stopped at the Gila River

-5-

Case 2:03-cv-01990-PGR

Document 172

Filed 08/18/2006

Page 5 of 8

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

Casino prior to the crash, where it is more likely that they switched positions. Again, until Defendants raised the contentions, Plaintiffs had no basis to testify regarding the fact that they saw two Gila River Casino chips at the scene of the accident, because they were irrelevant. In conclusion, Rule 26 requires that Plaintiffs disclose witnesses and information they intend to use to support their claims. Defendants were obligated to set forth their defenses and their claims and to disclose witnesses and documents they intended to use in support of those claims and defenses. Because Defendants did not raise the contention that they believed Javier Urrutia was the driver of the Urrutia vehicle during discovery, Plaintiffs had no reason to disclose their additional testimony because it was irrelevant. Therefore, Plaintiffs did not violate disclosure rules. If the Court allows Defendants to now raise this contention, Plaintiffs will be severely prejudiced. If Defendants had raised this issue from the onset of the litigation, Plaintiffs might have been able to obtain video from the gas station where Plaintiffs believe Jose Urrutia fueled his vehicle prior to the crash and/or obtained video from the Gila River Casino. This prejudice cannot be cured. B. Plaintiffs Did Not Commit Spoliation. Plaintiffs did not commit spoliation of video at the gas station where evidence suggests the deceased fueled the vehicle prior to the crash and/or the video that may have been available at the Gila River Casino because Plaintiffs did not know of the videos and had no reason to believe that videos at these locations were relevant to any of the issues in this case. Defendants' spoliation arguments are frivolous. In Plaintiffs' July 18, 2006, Motion in Limine to preclude Dr. Zhang's opinions, Plaintiffs point out that if the Court were to somehow allow Dr. Zhang to opine that he now believes that the body found behind the steering wheel of the Urrutia vehicle

-6-

Case 2:03-cv-01990-PGR

Document 172

Filed 08/18/2006

Page 6 of 8

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

was that of Javier Urrutia, Plaintiffs would be severely prejudiced. Plaintiffs would be severely prejudiced because, if Javier was the driver, the question becomes where and when did Javier become the driver of the Urrutia vehicle. We now know that Defendants desperately want to argue that Javier switched places with Jose Urrutia in the emergency lane just before the crash; however, it is more likely that if in fact Javier was driving, the switch took place either at the gas station where the deceased fueled or at the Gila River Casino. Because Defendants did not contend that Javier was the driver of the Urrutia vehicle until well after the close of discovery, Plaintiffs are prejudiced by their inability to perhaps obtain witnesses and/or video establishing that Javier Urrutia became the driver of the Urrutia vehicle at a different place and time than Defendants want to suggest. Defendants have now taken Plaintiffs prejudice argument and turned it on its head, arguing that Plaintiffs have committed spoliation by not obtaining video from the gas station and the Gila River Casino. Once again, the flaw in Defendants' reasoning is that Plaintiffs had no reason to believe that video from the gas station or the Gila River Casino existed or was in any way relevant to any of the issues in the case. It was not until Defendants raised the contention that they believed that Javier was the driver of the Urrutia vehicle that those videos became relevant. [L]itigants have a duty to preserve evidence which they know, or reasonably should know, "is relevant to the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request." Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247 (1997); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991).

-7-

Case 2:03-cv-01990-PGR

Document 172

Filed 08/18/2006

Page 7 of 8

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

In this case, Plaintiffs had no reason to believe that the subject videos existed, were relevant to any of the issues in this case or were reasonably calculated to lead to the discovery of admissible evidence. Finally, the videos were never the subject of any discovery requests. Therefore, Plaintiffs could not have committed spoliation. Even assuming Plaintiffs understood that the videos were relevant, Plaintiffs did not control or possess the videos, and thus could not have preserved them. Wherefore, Plaintiffs respectfully request the Court deny Defendants' Motion in Limine and Defendants' Motion for Adverse Jury Instruction for Spoliation. Dated this 18th day of August, 2006. MONTOYA JIMENEZ, P.A. s/Augustine B. Jimenez III Augustine B. Jimenez III 3200 N. Central Avenue, Suite 2550 Phoenix, Arizona 85012-2490 Attorneys for Plaintiffs I hereby certify that on August 18, 2006, I electronically transmitted the foregoing 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: Donald R. Wilson, Garvey M. Biggers and S. Lee White. I hereby certify that on August 18, 2006, I served the foregoing document by mail/hand delivery/e-mail on the following, who are not registered participants of the CM/ECF System: The Honorable Paul G. Rosenblatt United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 621 401 W. Washington Street, SPC 56 Phoenix, AZ 85003-2156 s/Augustine B. Jimenez III

-8-

Case 2:03-cv-01990-PGR

Document 172

Filed 08/18/2006

Page 8 of 8