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

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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 TO REOPEN DISCOVERY FOR PURPOSE OF DNA TESTING AND REQUEST ORDER COMPELLING PLAINTIFFS TO SUBMIT TO DNA TESTING

Defendants request the Court reopen discovery and order Plaintiffs to submit to DNA testing. The Court should summarily deny Defendants' Motion on the grounds that F.R.C.P. 37(c)(1) precludes Defendants from using the untimely disclosed "expert" opinions of Dr. Zhang in any trial, hearing, or motion. Even if the Court were to consider Defendants' very late disclosure of Dr. Zhang's opinions, the Court should deny Defendants' Motion because Defendants cannot show good cause for their delay of nearly two years to disclose Dr. Zhang's new opinions; and because Plaintiffs would be severely prejudiced. I. Introduction. This matter arises out of the May 22, 2003, rear-end crash by a semitractor-trailer driven by Defendant Darrell Lee Ekdahl into a 1-1/2 ton

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1979 Ford flat-bed truck. The crash occurred on Interstate 10 at about 3 a.m., between Sacaton and Case Grande, Arizona. Initially, Defendant contended that Jose Urrutia pulled out in front of him from the emergency lane and turned on its lights just before impact. Defendant Ekdahl led police to believe that the Urrutia vehicle was at an angle at impact. It is now uncontroverted that the Urrutia vehicle was completely and squarely in the slow lane of travel when Defendant rearended their vehicle. Defendants' expert reconstructionist, Stephen Werner, has admitted that there was absolutely no physical evidence showing that the Urrutia vehicle had ever been in the emergency lane. The bodies were severely burned and, according to the Medical Examiner's records, were unidentifiable. More importantly, the Medical Examiner's amended report, which was issued on June 13, 2003, documents the fact that the body found behind the steering wheel had certain clothing and a wallet containing the remnants of a $100 bill. These two pieces of evidence, coupled with the fact that Plaintiffs last saw Jose Urrutia driving the Ford truck, was sufficient for the family members and the Medical Examiner's office to conclude that the body found behind the steering wheel was that of Jose Urrutia. Both the Medical Examiner's reports and the death certificates were all prepared consistent with this understanding. More importantly, the fact that the Medical Examiner's report indicated that the bodies were burned beyond recognition and that no DNA or dental testing was conducted was known by the parties even before discovery opened in this matter. Defendants had every opportunity to conduct discovery into the identity of the driver, but chose not to. Now that trial is imminent, Defendants are desperately trying to develop facts to support their claim that the Urrutia vehicle came from the emergency lane.

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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 ultimately closed on February 15, 2005. This matter has been pending since October 14, 2003. Defendants have never alleged that the deceased passenger, Javier Arturo SandateUrrutia, was the driver of the Urrutia vehicle. It was not until the final pretrial hearing on March 13, 2006, three years after the fatalities, nearly two years after Defendants' expert disclosures were due, and 13 months after the close of discovery, that Defendants first suggested that perhaps Javier Arturo Sandate-Urrutia was the driver of the Urrutia vehicle. Thereafter, defense counsel traveled to New Jersey to meet with Dr. Zhang and present him with various photographs, hoping that he would change his position relative to the identification of the bodies. Having obtained an affidavit from Dr. Zhang suggesting that the bodies were misidentified, Defendants now want to reopen discovery. However, the Court must deny Defendants' request on the grounds that Defendants are precluded from attempting to use Dr. Zhang's affidavit to reopen discovery and, separately, even if the Court were to consider the request, Defendants cannot show good cause to reopen discovery. II. Analysis. A. Defendants are Precluded from Using Dr. Zhang's New Opinions in Their Motion.

A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial, any hearing, or on a motion any witness or information not so disclosed. (emphasis added) F.R.C.P. 37(c)(1); see also Castillo v. City and County of San Francisco, 2006 WL 618589 at page 2 (N.D. Cal. 2006). The exclusion of undisclosed

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evidence "is automatic and mandatory under Rule 37(c)(1) unless nondisclosure was justified or harmless." See Johnson v. United Parcel Service, Inc., W.L. 840409 (E.D. Tenn. 2006) (precluding new evidence presented at final pretrial conference). Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., P.C., 388 F.3d 976, 983 (6th Cir. 2004) (quoting Mosser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004). Defendants cannot show any justification for their failure to timely disclose expert opinions regarding the identity of the driver of the Urrutia vehicle. The Medical Examiner's reports containing the method and bases for the identification of the respective bodies have been known to the parties since the very beginning of this litigation. If Defendants intended to challenge the initial determination and try to show that Javier was the driver of the Urrutia vehicle, they should and could have done so during discovery. Defendants' suggestion that they were misled by Plaintiffs is absurd. Plaintiffs provided information to the Department of Public Safety to assist them and the Medical Examiner in identifying the bodies. Plaintiffs did not see the bodies and could no more identify the bodies than the Medical Examiner's office. The identification of the bodies was based upon the information known at that time, and which Plaintiffs firmly believe to be correct. Defendants also argue that they did not locate Dr. Zhang until after the March 2006 final pretrial conference. Defendants admit, however, that they did not attempt to locate Dr. Zhang until November of 2005, more than two years after they were required to disclose experts and nine months after the close of discovery. Defendants do not and cannot establish that they could not have obtained the same affidavit from Dr. Zhang years ago and before he left for New Jersey.

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What has actually happened in this case is that defense counsel Garvey Biggers has taken over the handling of the defense of this matter from S. Lee White, who conducted all of the discovery except for one deposition, in this matter. Now that Mr. Biggers has taken over, Defendants want to reopen discovery to shore up their defense. While this is understandable, it is a violation of the Court's Scheduling Order and, more importantly, F.R.C.P. 37(c)(1) does not permit Defendants to use Dr. Zhang's affidavit for any motion, including a motion to reopen discovery. B. Defendants Cannot Show Good Cause to Reopen Discovery. Plaintiffs firmly believe that the Court need not entertain Defendants' request to reopen discovery and should summarily deny the request pursuant to Rule 37(c)(1). However, even if the Court were to entertain Defendants' Motion, the Court must deny the motion on the grounds that Defendants cannot show good cause to reopen discovery. Defendants do not address the issue of good cause in their Motion to Reopen. Instead, it appears Defendants believe that simply providing the Court with "newly discovered" evidence is sufficient to reopen discovery. This is not the law. F.R.C.P. 16(b) and (e) permit changes to the pretrial discovery order upon the showing of good cause or manifest injustice. Good cause cannot be shown where a party has had ample opportunity to pursue the evidence during discovery. Trebor Sportswear Co. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) (denying additional discovery when the party opposing the motion for summary judgment had a "fully adequate opportunity for discovery"); see also Burlington Coat Factory Warehouse Corp. v. Espirit De Corp, 769 F.2d 919, 927 (2d Cir. 1985) (denying plaintiff's motion to reopen when plaintiff had had ample opportunity to conduct discovery that it now claims essential); Yrityspankki Shop Oyj v. Delta Fronting Corp., N.O. 98 Civ. 7888, 1999 WL 1018048, at 4 (denying

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request to reopen discovery when party was aware of the relevance of the information in question during discovery and could have developed the information during that time). The party seeking to reopen discovery must show why the Court's deadlines could not have reasonably been met despite its diligence. King v. Friend of Farmer, Inc., 2000 WL 290355 (S.D.N.Y.), citing 6A Federal Practice and Procedure, §1522.1 at 231. In this case, Defendants are attempting to improperly bootstrap the extremely late affidavit of Dr. Zhang, which contradicts his own Medical Examiner reports, to reopen discovery. However, central to the request is the requirement that Defendants establish good cause to reopen discovery. Defendants cannot show good cause by the improper use of Dr. Zhang's affidavit presented nearly two years after Defendants were required to disclose expert opinions. Defendants cannot show good cause because Defendants cannot establish that they could not have obtained the affidavit from Dr. Zhang during discovery and in compliance with the Court's Scheduling Order, nor can they show that they could not have made their request for DNA testing years ago. The Medical Examiner's report, which indicates that the bodies were unidentifiable and that the identification of the bodies was not based on DNA or dental records, was known to the Defendants years ago. If Defendants believed that the identification of the bodies was incorrect, it was incumbent upon Defendants at that time to conduct the appropriate discovery to make their determination. Defendants did not conduct this discovery because Defendants accepted the Medical Examiner's report and identification and passed on that issue. /// /// ///

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C.

Plaintiffs Would Be Irreparably Prejudiced if the Court Granted Defendants' Motion to Reopen.

Plaintiffs would be severely prejudiced if the Court granted Defendants' Motion. Defendants hope to establish that the passenger, Javier Urrutia, was in fact the driver of the Urrutia vehicle. By suggesting that Javier was the driver, Defendants will then argue that the deceased must have pulled into the emergency lane to switch drivers. However, if this showing were made today, Plaintiffs would be prejudiced by the inability to show where the switch actually occurred. If the issue had been raised at the appropriate time, Plaintiffs could have obtained surveillance video from the gas station where the deceased fueled prior to leaving Phoenix. Plaintiffs also would have obtained surveillance video from the Gila River Casino, where Plaintiffs believe the deceased stopped before the crash. If Javier Urrutia was in fact the driver, Plaintiffs have now been deprived of the ability to show that he became the driver somewhere other than the emergency lane as claimed by Defendants. It is highly unlikely that any witnesses or surveillance video exist some three years after the crash. Thus, Defendants' late disclosure would severely prejudice Plaintiffs. III. Plaintiffs Request Sanctions Pursuant to F.R.C.P. 37 (c)(1). Pursuant to F.R.C.P. 37(c)(1), Plaintiffs request as a further sanction attorney's fees and costs incurred in opposing Defendants' Supplemental Trial Brief: Notice of Newly Disclosed Evidence and Defendants' Motion to Reopen and for DNA Testing. On July 18, 2006, 2006, Plaintiffs' counsel wrote to defense counsel Mr. Biggers and requested that the Defendants withdraw their Motion to Reopen, setting forth the legal deficiencies in their request. Attached hereto as Exhibit 1 is a true and correct copy of that letter. Plaintiffs had given the Defendants until July 21, 2006, to withdraw their

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Motion. Defendants failed to withdraw their Motion. Plaintiffs should not have been required to undertake the filing of Plaintiffs' Response and Motion in Limine to Defendants' Supplemental Trial Brief: Notice of Newly Disclosed Evidence nor Plaintiffs' Response to Defendants' Motion to Reopen Discovery and Motion to Compel DNA Testing. Plaintiffs therefore respectfully request their attorney's fees and costs as a further sanction. WHEREFORE, Plaintiffs request the Court deny Defendants' Motion to Reopen and to Compel DNA Testing and award Plaintiffs their attorney's fees and costs in responding in limine to Defendants' Supplemental Trial Brief: Notice of Newly Disclosed Evidence and Defendants' Motion to Reopen Discovery and Motion to Compel DNA Testing Dated this 3rd 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 3, 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. s/Augustine B. Jimenez III

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