Free Trial Brief - District Court of Arizona - Arizona

STRUCKMEYER & WILSON 910 E. Osborn Rd. Phoenix, AZ 85014 PHONE: (602) 248-9222 FAX: (602) 263-0464 Donald R. Wilson, 1239 [email protected] Garvey M. Biggers, 9932 [email protected] Thomas J. Cesta, 21453 [email protected] UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) Plaintiffs, ) ) vs. ) ) Darrell Lee Ekdahl and Jane Doe Ekdahl, ) husband and wife; George Vanden Bossche ) and Karolyn Vanden Bossche, husband and ) wife; and Vandy's Transportation, Inc., a ) California corporation, ) ) Defendants. ) ____________________________________) Palma Baca Urrutia; Patricia Urrutia-Baca; Luis Javier Urrutia-Baca; Elizabeth UrrutiaBaca; Javier Arturo Urrutia-Arrieta; and Gloria Estela Sandate,

NO. CV-03-1990-PHX-PGR

RESPONSE TO PLAINTIFFS' MOTION IN LIMINE SEEKING TO PRECLUDE NEWLY DISCLOSED EVIDENCE

(Oral Argument Requested)

(Assigned to the Honorable Paul G. Rosenblatt)

Defendants, by and through undersigned counsel, respond to Plaintiffs' Motion in Limine to Preclude Newly Discovered Evidence. Plaintiffs' Motion is nothing more than an attempt to cover up the truth of who was driving Plaintiffs' vehicle at the "moment of the accident."

Case 2:03-cv-01990-PGR

Document 168

Filed 08/01/2006

Page 1 of 12

I. A.

PROCEDURAL OUTLINE Dr. Zhang Dr. Zhang is the Medical Examiner who examined both bodies in 2003. When

Dr. Zhang did the autopsies on the two occupants of Plaintiffs' vehicle: (1) Plaintiffs would not consent to DNA testing, and (2) would not provide dental records, and (3) because Dr. Zhang had nothing else, he relied on the Plaintiffs' false information that Jose was the driver of the Urrutia vehicle. After reviewing the autopsy records, counsel for Defendants became suspicious as to who was actually driving the Urrutia vehicle at the moment of the accident. The description of the injuries in the autopsy reports left much to be questioned. For these reasons, defense counsel attempted to contact Dr. Alex Zhang beginning in November of 2005 and could not find Dr. Zhang until March 16, 2006. Notwithstanding the fact that defense counsel could not confirm their beliefs, they put in the Joint Pretrial Statement the fact that Defendant was now contending that Javier may well have been the driver of the Urrutia vehicle at the time of the accident. This was included in the November 2005 Joint Pretrial Statement. Thus, Plaintiffs were made aware of the fact that Defendants were exploring the issue of "the truth" as to who the driver of the Urrutia vehicle was at the time of the accident as opposed to relying upon the representations of the Plaintiffs. Plaintiffs have taken the position in this lawsuit that Jose was the driver and based on Plaintiffs' information, Dr. Zhang conceded to that position. Defendants could not do anything as to "the truth" regarding who was driving the Urrutia vehicle at the time of the accident until they could finally reach Dr. Zhang.

Case 2:03-cv-01990-PGR

Document 168 2

Filed 08/01/2006

Page 2 of 12

Dr. Zhang now lives in New Jersey and a meeting could not be set up between defense counsel and Dr. Zhang until June 12, 2006. At that time, Dr. Zhang reviewed the records, including the autopsy reports and re-examined the injuries sustained by both occupants in the Urrutia vehicle, namely Jose and Javier. Dr. Zhang concluded to a reasonable degree of medical probability that he had made an error in relying upon the information given by Plaintiffs' relatives to the effect that Jose was the driver. On June 23, 2006, for the first time, Dr. Zhang provided an Affidavit explaining why, based upon the evidence, he now concluded that the driver of the Urrutia vehicle at the moment of the accident was indeed Javier and not Jose as stated by Plaintiffs in this case, who are the heirs of both. Dr. Zhang also reviewed photographs as Jose and Javier both appeared in life and in death and a copy of his Affidavit has been provided to Plaintiff's counsel and a copy is incorporated by reference to Defendants' Supplemental Trial Brief dated July 12, 2006. The court should note that Dr. Zhang is not the newly disclosed evidence. Dr. Zhang was timely disclosed by Plaintiffs and Defendants. At the time of disclosure, based upon the representations of the heirs and Plaintiffs in this case, both Plaintiffs' counsel and defense counsel were of the belief that Jose was the driver of the Urrutia vehicle at the moment of the accident. We now know that these representations of the surviving Plaintiffs are incorrect and that the material given to Dr. Zhang was incorrect when he did his original autopsies. Neither Plaintiffs nor Defendants have yet deposed Dr. Zhang. Dr. Zhang is a "necessary witness at trial" because he is needed to lay the foundation for and authenticate the Reports of Autopsy and render his "opinion" as to who was driving the Urrutia vehicle.

Case 2:03-cv-01990-PGR

Document 168 3

Filed 08/01/2006

Page 3 of 12

The "thrust" of Plaintiffs' Motion in Limine is to seek an Order from this Court directing Dr. Zhang to testify to an opinion that he now believes is incorrect since it was based upon information he gained from the survivors of Jose and Javier, which survivors are now the Plaintiffs in this case. If Plaintiffs' Motion were granted by the Court, Plaintiffs would still have to call Dr. Zhang and all parties and the Court would then be participating in a charade where Dr. Zhang would be ordered to testify, not as to the truth, but to testify in accordance with his autopsy report, which again, was based upon representation by the survivors, who are now the Plaintiffs. The purpose of a jury trial in Federal Court or in any Court is to "seek the truth" and not force Dr. Zhang (who has never even been deposed in this case) to give an opinion contrary to his belief or to give testimony contrary to his belief. For these reasons, Plaintiffs' Motion in Limine should be denied and Defendants should be allowed to take Dr. Zhang's deposition and bring him to Court to testify as to all of the circumstances surrounding his original autopsy, his original report, and his current opinion. B. Plaintiffs' Supplemental Trial Brief The Court should also note that the Plaintiffs' document was titled "Plaintiffs' Response and Motion in Limine to Defendants' Supplemental Trial Brief; Notice of Newly Disclosed Evidence." Defendants are of the understanding that the rules do not contemplate a response to a Supplemental Trial Brief. Therefore, Defendants are treating Plaintiffs' pleading merely as a Motion in Limine. C. Plaintiffs' attorney's conflict of interest Plaintiffs' pleading goes beyond a Motion in Limine. Instead, Plaintiffs' attorney has addressed his conflict of interest. This should be treated as a Supplemental Trial

Case 2:03-cv-01990-PGR

Document 168 4

Filed 08/01/2006

Page 4 of 12

Brief, and thus Defendants will not respond. Hopefully, Plaintiffs' counsel has done enough to satisfy the court that he has resolved his ethical violation. D. Cecil Lane To the extent that Plaintiffs' motion addresses whether Plaintiffs' witness Cecil Lane should be permitted to testify, Plaintiffs' comments in these regards are not related to Plaintiffs' Motion in Limine. Because the rules do not provide for a Response to a Trial Brief, Defendants move for the court to strike any reference to Cecil Lane at this time. E. Plaintiffs' undisclosed testimony Finally, Plaintiffs seek to bolster their claim that decedent Jose Luis UrrutiaArrieta (hereinafter, decedent Urrutia) was driving, by offering testimony not before disclosed. Because Plaintiffs have had this information in their possession since the accident occurred and never before disclosed it, they are in violation of FRCP 37(c) cannot use it to support their Motion in Limine, or to refute Dr. Zhang's opinion. The motion in limine to preclude this testimony is addressed in a companion pleading. II. FACTUAL BACKGROUND Plaintiffs' Motion in Limine contained several factually misleading statements. However, most of these are not relevant to the issue of whether Defendants should be allowed to put the truth before the jury. The facts significant to this Response are that Defendants informed the Plaintiffs of their intent to argue that Javier Arturo Sandate-Urrutia (hereinafter, decedent Sandate) may have been driving, well before the March 6, 2006, Trial Brief. Plaintiffs forgot to mention to the court that the same argument was contained in the parties' November 8, 2005, Joint Pretrial Statement (hereinafter, JPTS).

Case 2:03-cv-01990-PGR

Document 168 5

Filed 08/01/2006

Page 5 of 12

Plaintiffs and Defendants listed Dr. Zhang as a witness, and indicated that he would testify consistent with the opinion in his autopsy reports. In preparation for trial, Defendants attempted to contact Medical Examiner Dr. Zhang in November, 2005. (See affidavit by Tom Cesta, attached.) Because Dr. Zhang is the Medical Examiner that conducted the autopsies, his testimony is needed to lay the foundation and authenticate the Reports of Autopsy. In addition, Defendants wanted to discuss whether the identity could be in error, because Defendants preferred to have this issue out in the open rather than to first arise during trial testimony. Defendants learned that Dr. Zhang was no longer with the Maricopa County Office of the Medical Examiner. Unfortunately, Defendants had little to go on to locate Dr. Zhang. Therefore, in the November '05 JPTS Defendants named Dr. Keen as a replacement witness. Counsel for defense continued efforts to locate Dr. Zhang until finally locating him in New Jersey, where he continues to work as a medical examiner. This occurred on March 16, 2006. On June 12, 2006, Defendants' counsel met with Dr. Zhang in New Jersey. Plaintiffs claimed that Dr. Zhang was shown various photographs of charred bodies. This is an incomplete account. Defendants began trial preparation and presented Dr. Zhang with all exhibits that he could be asked to review on the stand. This included photographs of the decedents after death, but also included the medical examiner's reports for the deceased, and the pictures of the deceased when they were still alive. Review of these materials side by side convinced Dr. Zhang to a reasonable degree of medical probability that the identifications were in error. On June 23, 2006, Dr. Zhang revised his opinion as to the identity of the bodies. See affidavit. Dr. Zhang

Case 2:03-cv-01990-PGR

Document 168 6

Filed 08/01/2006

Page 6 of 12

still intends to testify consistent with his autopsy reports. The only change that he would make to the reports is the identification of the deceased. The court should not preclude evidence the defendant could not disclose sooner because it was not possessed until recently. The evidence is the testimony of percipient witness Dr. Zhang. Well within the court scheduled disclosure deadlines both parties disclosed their intent to use Dr. Zhang's testimony. What it newly discovered is that after reviewing the trial exhibits, Dr. Zhang has now indicated that he will testify that the identifications are in error. This is newly discovered because no one had put the exhibits in front of Dr. Zhang until preparing for trial. It was only then that Defendants learned that Dr. Zhang determined to a reasonable degree of medical certainty that the identifications were in error. The affidavit itself is not the evidence. However, it informs the parties of Dr. Zhang's intended testimony. On July 6, 2006, Defendants disclosed the affidavit to Plaintiffs. On July 12, 2006, Defendants filed a Supplemental Trial Brief to inform the court of the disclosure of the newly discovered evidence. Finally, on July 17, 2006, Defendants filed their Motion to Reopen Discovery for the Purpose of DNA Testing and Request Order Compelling Plaintiffs to Submit to DNA Testing. III. A. ARGUMENT The Testimony Defendants Offer Is Newly Discovered, and Thus Defendants Have Substantial Justification For Disclosing it Now, Or the Late Disclosure is Harmless Plaintiffs contend that the newly discovered evidence should be precluded because it is late disclosed evidence, in violation of the Court's order. In Dey, L.P. v. Ivax Pharmaceuticals, Inc. the Court stated that when considering whether the late disclosure is either substantially justified, or is harmless, that:

Case 2:03-cv-01990-PGR

Document 168 7

Filed 08/01/2006

Page 7 of 12

courts consider (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence, and (5) the nondisclosing party's explanation for it failure to disclose the evidence. 233 F.R.D. 567, at 571 (C.D. Cal., 2005). B. There is no surprise Applying these factors, the court should find that Defendants are substantially justified, or the late disclosure is harmless. Defendants indicated in their Joint Pretrial Statement (November 2005) that Javier may have been the driver. Defendants repeated this in their March 6, 2006 Trial Brief, and the court discussed the possibility during the March 13, 2006 pretrial conference. In addition, Dr. Zhang was already a disclosed witness by both parties. The fact that neither party did not depose him and did not determine his testimony should not allow Plaintiffs to argue surprise. All that Defendants have done is to determine Dr. Zhang's testimony, and bring it to the attention of Plaintiffs. C. If there was surprise, it can be cured Even if there were surprise, this can be cured. The trial date has not been set. Dr. Zhang can be deposed. Any surprise will be cured without delay of trial. D. There will be no disruption of trial Dr. Zhang is already a listed witness. His testimony was already expected to occur. Allowing Dr. Zhang to testify to the "true" extent of his opinion as opposed to a "false" opinion will not delay or disrupt the trial. In fact, Dr. Zhang's testimony will streamline the trial. Defendants will not need to argue about the possibility of either decedent Jose Urrutia or Javier Sandate being the driver, but will be able to concentrate on the impairment of Javier Sandate only.

Case 2:03-cv-01990-PGR

Document 168 8

Filed 08/01/2006

Page 8 of 12

Furthermore, because decedent Sandate is an unlicensed minor, decedent Urrutia is jointly and severally liable for Sandate's negligent and willful acts of misconduct. A.R.S. §28-3163. This will allow the court to use simpler verdict forms and jury instructions. E. The importance of the evidence First, Dr. Zhang must be allowed to render a "truthful" opinion. Dr. Zhang's testimony is highly important to both parties. Dr. Zhang is going to testify in this case. The issue to be decided by Plaintiffs' Motion is whether or Dr. Zhang can testify "truthfully" or "falsely" (based upon information he received from Plaintiffs). Dr. Zhang must to be allowed to truthfully inform the jury which body is which and who was driving the vehicle. In doing so, the jury will learn that unlicensed 16 year old Sandate was driving. This explains much about why the accident occurred, and why Plaintiffs do not want the "truth" known. F. The explanation for not disclosing earlier In arguing for exclusion, Plaintiffs ignore the fact that the evidence was not obtained until June 23, 2006, and was disclosed less than two weeks later. Defendants began attempting to locate Dr. Zhang in preparation for trial in November, 2005. He was finally located in March, 2006, and Defendants met with him in June. It was only after this meeting that Defendants could disclose that Dr. Zhang would testify that decedent Javier Sandate was the body recovered from the driver's seat. Before this, no one knew that Dr. Zhang would decide that the identification was in error. In Space Systems/Loral, Inc. v. Lockheed Martin Corp. 2006 WL 279331, (N.D. Cal., 2006) the court was faced with a patent matter in which the court was considering whether to invalidate a patent because the item had been offered for sale before the patent

Case 2:03-cv-01990-PGR

Document 168 9

Filed 08/01/2006

Page 9 of 12

was obtained. In support of its claim, defendant Lockhead sought to use the testimony of a witness that the plaintiff attempted to prevent by arguing that Lockhead was without substantial justification. However, the Court found that because Lockhead apparently had only learned of the witness' existence recently, that there was substantial justification for the late disclosure. Furthermore, because the trial date had not yet been set, the nondisclosure was likely to be completely harmless. Id, at 6. Similarly, in Hazelwood v. U.S. 2006 WL 1599344, (D. Ariz.) (D. Ariz., 2006), the court found that even "the untimely disclosure of the expert can be rendered harmless. This case has not yet been set for trial. Therefore, the Court will allow additional time for Defendant to conduct discovery regarding Plaintiff's expert." Hazelwood, at 7. Defendants have disclosed the evidence of Dr. Zhang's testimony as soon as it was obtained. Defendants received the affidavit on June 26, 2006, and disclosed it to Plaintiffs on July 6, 2006. The evidence was disclosed after the court deadline, but was not untimely in that it was disclosed within less than a month of receipt. This is substantial justification for disclosing the information now. Defendants only recently obtained it. Earlier disclosure was not possible. The analysis of the five factors show that there is substantial justification for disclosure of the testimony at this time, and also that the disclosure is harmless. In addition, Defendants also asked to reopen discovery for DNA testing if Plaintiffs contest the testimony. No trial date has yet been set. Defendants would prefer not to delay the trial, but Defendants would also prefer to put truth before the jury. IV. CONCLUSION Defendants disclosed Dr. Zhang's testimony as soon as it was available. Defendants' disclosure is substantially justified because earlier disclosure was not

Case 2:03-cv-01990-PGR

Document 168 10 Filed 08/01/2006

Page 10 of 12

possible. The disclosure at this juncture is also harmless. Plaintiffs can merely participate in the DNA testing that they refused three years ago. The DNA testing will ensure that the identification is irrefutable. Because the disclosure is substantially justified, or is harmless, Dr. Zhang must be permitted to testify. Without his testimony, neither the Plaintiffs nor the Defendants can prove the identities of the deceased. If Plaintiffs do not prove the identity of the deceased, then Plaintiffs will be unable to prove an essential element of their claim. Plaintiffs must use Dr. Zhang's testimony to show that the bodies are the bodies of decedent's Jose and Javier. During this testimony, Dr. Zhang must be allowed to tell the jury which body is which. Defendants have just learned that the representations of the Plaintiff survivors to Dr. Zhang were incorrect and that the physical facts and the opinion of Dr. Zhang is that Javier Sandate was driving the vehicle at the moment of the accident. It is clear that Plaintiffs' counsel wants this truthful evidence suppressed. It is respectfully submitted that this Court should deny Plaintiffs' Motion and make absolutely certain that all parties have an opportunity to question Dr. Zhang thoroughly, run DNA testing if necessary, and that this case proceed to trial with evidence that is truthful as opposed to evidence that Dr. Zhang now believes is ... ... ...

Case 2:03-cv-01990-PGR

Document 168 11 Filed 08/01/2006

Page 11 of 12

without truth, all of which would result in a fraud upon the jury and simply create a charade in connection with the presentation of this case to a jury.

RESPECTFULLY SUBMITTED this 1st day of August, 2006. STRUCKMEYER AND WILSON

s/Donald R. Wilson_________________________ Donald R. Wilson Garvey M. Biggers Thomas J. Cesta Attorneys for Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc. ORIGINAL of the foregoing electronically submitted using the CM/ECF System for filing and transmittal of a Notice of Filing to the following CM/ECF registrants: Augustine B. Jimenez III MONTOYA JIMENEZ, P.A. 3200 N. Central Ave., Suite 2550 Phoenix, Arizona 85012 (Attorney for Plaintiffs) COPY (paper) of the foregoing mailed/hand-delivered (*) this 1st day of August, 2006 to: (*) The Honorable Paul G. Rosenblatt UNITED STATES DISTRICT COURT Sandra Day O'Connor Courthouse 401 W. Washington St. Phoenix, AZ 85003

s/Donald R. Wilson____________

Case 2:03-cv-01990-PGR

Document 168 12 Filed 08/01/2006

Page 12 of 12