Free Motion for Reconsideration - District Court of Arizona - Arizona

STRUCKMEYER & WILSON 910 E. Osborn Rd. Phoenix, AZ 85014 PHONE: (602) 248-9222 FAX: (602 263-0464 Garvey M. Biggers, 9932 [email protected] Thomas J. Cesta, 21453 [email protected] Attorneys for Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Palma Baca Urrutia; Patricia Urrutia-Baca; Luis Javier Urrutia-Baca; Elizabeth UrrutiaBaca; Javier Arturo Urrutia-Arrieta; and Gloria Estela Sandate, ) ) ) ) ) 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. ) ____________________________________) NO. CV-03-1990-PHX-PGR DEFENDANTS' MOTION TO REOPEN DISCOVERY FOR PURPOSE OF DNA TESTING AND REQUEST ORDER COMPELLING PLAINTIFF'S TO SUBMIT TO DNA TESTING

(Oral Argument Requested)

(Assigned to the Honorable Paul G. Rosenblatt)

Because of newly-discovered evidence that decedent Javier Arturo Sandate-Urrutia was driving the Urrutia truck, Defendants, DARRELL LEE EKDAHL, GEORGE AND KAROLYN VANDEN BOSSCHE, AND VANDY'S TRANSPORTATION, INC., by and through undersigned counsel, hereby move for the Court to Order that discovery be reopened for the purpose of conducting DNA testing. Essentially, the blood relatives (parents) of Javier would need to submit to an acceptable DNA test and the children of Jose would need to submit to a similar test.

Case 2:03-cv-01990-PGR

Document 165

Filed 07/17/2006

Page 1 of 8

1 2 3 4 5

I. A.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY The Accident On May 22, 2003, at about 3:00 a.m. on I-10 near Sacaton, AZ, about two miles south of

the nearest on-ramp, a collision occurred. The speed limit in that location is 75 mph. Darrell Ekdahl was in a Vandy's Transportation tractor-tanker, traveling east to Tucson. Jose Luis

6

Urrutia- Arrieta (decedent Urrutia), and his nephew, Javier Arturo Sandate-Urrutia (decedent
7

Sandate) were in decedent Urrutia's 1979 Ford flatbed truck.
8 9 10 11 12 13 14 15 16 17

Based upon newly discovered proof from a Board Certified Medical Doctor, decedent, minor child, Sandate was most likely the driver of the Urrutia truck, and he was entering the freeway from the shoulder at a speed far too slow for the conditions. He did not have his headlights or taillights on, and he did not turn them on until he was entering the lanes. The highway is not lighted. Under these conditions, the Urrutia truck was not visible from where Ekdahl was located. Unfortunately, decedent Sandate did not get the Urrutia truck up to a reasonable freeway speed before he entered the freeway in front of the semi. When the collision occurred, the Urrutia truck was still traveling at a low rate of speed. Because of the unreasonably slow speed of the Urrutia truck, and because decedent Sandate did not turn on his

18

headlights or taillights until he began to pull in front of Darrell, Darrell could not avoid the
19

accident.
20 21 22 23 24 25 26

When the collision occurred, the Urrutia truck rolled and caught fire. The occupant on the passenger side was ejected. The driver remained seated behind the steering wheel. The bodies of decedent Sandate and decedent Urrutia were burned beyond recognition in the fire. DPS officers investigated the collision and attempted to identify the occupants of the Urrutia truck. There was no identification to use except a prescription container, and a receipt with a social security number copied onto it. DPS numbered and sealed the bodies in bags

2 --

Case 2:03-cv-01990-PGR

Document 165

Filed 07/17/2006

Page 2 of 8

1 2 3 4 5

transported to the Maricopa County Medical Examiner's Office via the Pinal County Medical Examiner's Office who in turn allowed a Pinal County Mortuary employee to transport the bodies. The body bag seals were broken by Dr. Zhang after arrival at the Maricopa County Medical Examiner's Office. II. THE HEARSAY, CHAIN-OF-CUSTODY, AND CONFUSING PLEADINGS OF THE PLAINTIFFS LEADING TO MISIDENTIFICATION. Dr. Zhang was the medical examiner for the Maricopa County Medical Examiner's Office that conducted the autopsies of the bodies of decedents Urrutia and Sandate. The examination of the bodies was not conducted side by side. Dr. Zhang's responsibility was to determine cause of death. Identification was secondary. At the time that he examined the bodies, the bodies were labeled "unidentified remains."

6 7 8 9 10 11 12

DPS trooper Garcia spoke with decedent Jose Urrutia's wife and daughter. Nobody
13

interviewed Javier's parents. It appears from Garcia's deposition testimony, and the notes he
14 15 16 17 18 19 20 21 22 23

wrote while talking to the wife and daughter of Jose, that they referred to decedent Jose Urrutia as the "driver", as did Officer Garcia. DPS Trooper Garcia later contacted the Maricopa County Medical Examiner's Office and informed them that the decedent Jose Urrutia was the driver, the body labeled 03-01652. A representative of the Maricopa County Medical Examiner's Office spoke with Jose's daughter, and she declined DNA testing to confirm ID. Dental records were requested but not available according to Urrutia family members. The names of Jose and Javier were filled in on the Medical Examiner's report, and Dr. Zhang signed the report. Identification was acceptable because the family members were comfortable with the identification. No family member

24

actually visualized the remains and no independent analysis was conducted from a medical or
25

scientific basis. Time was of the essence because the family wanted to conduct appropriate
26

funeral services.
3 --

Case 2:03-cv-01990-PGR

Document 165

Filed 07/17/2006

Page 3 of 8

1 2 3 4 5 6 7 8 9 10 11

On December 15, 2003, plaintiff's filed their Amended Complaint. Of significance to this motion, plaintiffs described the collision as follows: On or about May 22, 2003, at approximately 3:00 a.m., Decedent Urrutia was driving his 1979 Ford flatbed truck, with his 17-year-old grandson, Decedent Sandate, as his passenger, eastbound on Interstate 10 at approximately Milepost 176.... Since that time, decedent Urrutia was referred to as the driver in all instances. All depositions were conducted with that understanding. All experts started from that proposition. Only shortly before trial did defendants realize that they may have been misled. Now, even according to Dr. Zhang defendants, this court and all witnesses have been misled. A determination of the truth of who is who and which body was in which position at the scene is now essential to the jury trial.

12

Despite ongoing efforts to locate Dr. Zhang, defendants were unable to locate him before
13

the March 2006 Joint Pretrial Statement had to be filed. Thus defendants listed the Chief
14 15 16 17 18 19 20 21 22 23

Medical Examiner as a replacement witness. III. THE IMPORTANCE OF DR. ZHANG During the March 13, 2006 pretrial conference the court inquired with regard to who was driving. See Exhibit 1, Pretrial Conference Transcript, page 7. Because the question was still open, Mr. Biggers offered that the plaintiffs could stipulate that Jose was driving. Transcript, page 8. Very curiously, plaintiff's counsel made no response. Indeed, the court indicated that this was an open issue based on whether the experts had all of the evidence before them when they opined. Transcript, pages 25, 26. For reasons unrelated to this issue, the trial was continued. During the interim,

24

defendants located Dr. Zhang in the New Jersey Medical Examiner's office, where Dr. Zhang
25

presently works as a deputy medical examiner. Once located, Dr. Zhang was given the
26

opportunity to review materials, photographs, and his report. In addition, although the Court
4 --

Case 2:03-cv-01990-PGR

Document 165

Filed 07/17/2006

Page 4 of 8

1 2 3 4 5

indefinitely continued the trial date for this case, defendants have continued to actively prepare for trial. Therefore, on June 12, 2006, defense counsel, Garvey M. Biggers, met with Dr. Zhang in Dr. Zhang's New Jersey office in preparation for Dr. Zhang's trial testimony. During the discussion of various trial exhibits, it became clear to Dr. Zhang that the original identification of the bodies was in error. Dr. Zhang has now identified the body that he

6

autopsied under case number 03-01652 as the body of Javier Arturo Sandate-Urrutia. Likewise,
7

the body that Dr. Zhang examined in case number 03-01653 is the body of Jose Luis Urrutia8 9 10 11 12 13 14 15 16 17

Arrieta. See Exhibit 2, Affidavit of Dr. Zhang. In Dr. Zhang's Affidavit, he affirms that he believes to a reasonable degree of medical probability that Javier Arturo Sandate-Urrutia is the body that Dr. Zhang examined in case number 03-01652. This is the body that was found behind the steering wheel of the Urrutia truck. Furthermore, Dr. Zhang affirms that the body that he examined in case number 03-01653 is the body of Jose Luis Urrutia-Arrieta. This is the body that was found outside of the vehicle next to the rear passenger wheel and has been presumed to be the body of the person who was the passenger at the time of impact. IV. ARGUMENT Defendants are satisfied that Dr. Zhang has correctly identified the remains and that

18 19

Javier Urrutia Sandate was the driver of the Urrutia vehicle and Jose Luis Arrieta Urrutia was the
20 21 22 23 24 25 26

passenger at the time of the contact between the Urrutia vehicle and the Vandy's Tractor-tanker. Dr. Zhang's opinion is not rebutted with any scientific or medical proof. However, plaintiffs continue to insist that Jose was the driver of the Urrutia vehicle. During the drafting of the new court ordered Joint Pretrial Statement, it has become obvious that plaintiffs intend to persist in contesting Dr. Zhang's opinion is without scientific evidence. It is the only scientific evidence. Instead, plaintiffs have now disclosed brand new evidence in the

5 --

Case 2:03-cv-01990-PGR

Document 165

Filed 07/17/2006

Page 5 of 8

1 2 3 4 5

way of proposed testimony about wallets and dollar bills and casino chips that were on the person of Jose. (See JPTS, exhibit 3, pages 17 and 18. Included by reference only. Exhibit not attached.) Because plaintiffs are unwilling to accept scientific facts and refuse to accept or stipulate, the parties need the court to resolve this issue. No one can refute the results of DNA testing.

6

Defendants propose that the court should order the plaintiffs to participate in the DNA testing
7

that they refused when first offered the chance by the Maricopa County Medical Examiner's
8 9 10 11 12 13 14 15 16 17

Office. DNA testing will definitively identify who was driving and who was the passenger. DNA testing will end the bickering and get the trial underway. DNA testing will have the added benefit of simplifying the trial and testimony. By confirming the identity of each of these bodies, the Court will be able to reduce the number of exhibits necessary during the trial. Once Jose and Javier are identified, the medical examiner's report, the medical examiner's photographs, and the Department of Public Safety photographs depicting burned bodies will not be needed during the trial. Eliminating the need for these exhibits will have the benefit of eliminating an area ripe for delay, mistake, and

18

eliminating an area of examination that is both highly prejudicial and likely to be fervently
19

contested.
20 21 22 23 24 25 26

A DNA test would allow the court to rule pursuant to Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000(1990) that one of the decedents was definitely the passenger and one was definitely the driver. If so, Dr. Zhang himself may not even need to testify, reducing the length and complexity of the trial. Defendants have learned that the Maricopa County Office of the Medical Examiner still possesses adequate tissue samples to conduct DNA testing. The cost per test is about $500.

6 --

Case 2:03-cv-01990-PGR

Document 165

Filed 07/17/2006

Page 6 of 8

1 2 3 4 5

According to Chief Medical Examiner Dr. Keen, to be certain of identity requires four tests--one each for Jose and Javier, and one for Patricia, and one for Javier's father. Defendants suggest that the parties should share the cost equally. However, defendants are willing to bear the entire expense to determine the truth. V. CONCLUSION Defendants move for the Court to reopen discovery for the purpose of ordering party

6 7

plaintiffs from each family, to participate in good faith in genetic testing and to provide genetic
8 9 10 11 12

samples so that genetic testing can be conducted using the tissue samples collected by the Maricopa County Medical Examiner's office. This genetic testing should definitively confirm the identification that Dr. Zhang has provided by a reasonable degree of medical probability.

RESPECTFULLY SUBMITTED this 17th day of July, 2006.
13

STRUCKMEYER AND WILSON
14 15 16 17 18 19 20 21 22 23 24 25 26

s/Thomas J. Cesta________________________ 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 AUGUSTINE B. JIMENEZ III, P.C. 3200 N. Central Ave., Suite 2550 Phoenix, AZ 85012 (Attorney for Plaintiffs)

7 --

Case 2:03-cv-01990-PGR

Document 165

Filed 07/17/2006

Page 7 of 8

1 2 3 4 5 6 7 8 9 10 11

COPY (paper) of the foregoing DEFENDANTS' MOTION TO REOPEN DISCOVERY FOR PURPOSE OF DNA TESTING AND REQUEST ORDER COMPELLING PLAINTIFF'S TO SUBMIT TO DNA TESTING mailed/hand delivered (*) this 17th day of July, 2006 to: (*) The Honorable Paul G. Rosenblatt UNITED STATES DISTRICT COURT Sandra Day O'Connor US Courthouse 401 W. Washington St. Phoenix, AZ 85003

s/Thomas J. Cesta_________________
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

8 --

Case 2:03-cv-01990-PGR

Document 165

Filed 07/17/2006

Page 8 of 8