Free Trial Brief - 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 PLAINTIFFS' RESPONSE AND MOTION IN LIMINE TO DEFENDANTS' SUPPLEMENTAL TRIAL BRIEF; NOTICE OF NEWLY DISCLOSED EVIDENCE

Plaintiffs, by and through counsel undersigned, hereby respond to Defendants' pleading entitled, Supplemental Trial Brief: Notice of Newly Disclosed Evidence and request the Court preclude the purported "new evidence" from Alex X. Zhang, M.D., on the grounds that the disclosure violates the Court's Scheduling Order by nearly two years and F.R.C.P. 26(a)(2)(A) and (C), and must therefore be precluded under Rule 37(C)(1). Defendants' pleading is a desperate attempt to circumvent the Rules of Civil Procedure, and the Court's Scheduling Orders, in hopes of again delaying trial in this matter. Defendants' "newly disclosed" evidence not only contradicts the official death certificates and autopsy reports, but Defendants' prior disclosures regarding their defense theory. Because Defendants' disclosure is without substantial justification and is harmful to Plaintiffs, the Court is required to preclude the evidence.

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Plaintiffs' Response and Motion in Limine is supported by the following Memorandum of Points and Authorities. Dated this 17th day of July, 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 MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction. This matter has been pending since October 14, 2003. Defendants have never raised the contention, possibility or suggestion that the deceased passenger, Javier Arturo Sandate-Urrutia was the driver of the Urrutia vehicle. It was not until March 6, 2006, three years after the fatalities, nearly two years after Defendants' expert disclosures were due, and eight months after discovery closed, that Defendants first argued in a trial brief that maybe Javier Arturo Sandate-Urrutia was operating the Urrutia vehicle. During the Pre-trial Conference of March 13, 2006, the Court noted that Defendants' Trial Brief suggested there was a question as to who was driving the deceased's vehicle. See Pre-Trial Conference Transcript of March 13, 2006, at page 7, lines 22-25. In response to the Court's inquiry, Mr. Biggers suggested that an inference could be drawn that they were tired and that they pulled over to switch drivers. This, of course, presupposed that the deceased's vehicle had been in the emergency lane. The only evidence of this is Defendant Ekdahl's self-serving claims to police. Defendants suggest that because Plaintiffs' counsel didn't jump at the opportunity to stipulate that Jose Urrutia was driving that this somehow

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demonstrated that Javier was the driver. Plaintiffs' counsel would have been happy to so stipulate, but was busy trying to deal with Defendants' contention that Plaintiffs' counsel had a conflict of interest. Thereafter, Defendants took it upon themselves to conduct additional discovery in hopes of bolstering their suggestion. By their own admission, Defendants did not begin their efforts to locate Dr. Zhang until November of 2005, well after the close of discovery. See page 2, paragraph 4 of Defendants' Supplemental Trial Brief: Notice of Newly Disclosed Evidence. After the pretrial conference, defense counsel traveled to New Jersey to present Dr. Zhang various photographs of the charred bodies in hopes of obtaining an "expert" opinion that the photos of the bodies showed that Javier Sandate-Urrutia was the driver. See page 3, paragraph 2 of Defendants' Supplemental Trial Brief: Notice of Newly Disclosed Evidence. Dr. Zhang admits that no DNA or dental records were reviewed, but that three years after the death of the decedents, upon review of various photographs, he now believes that the remains found behind the wheel of the 1979 Ford were those of Javier Arturo Sandate-Urrutia. Besides the glaring FRE 702 and 703 reliability and foundational defects associated with an attempt to identify remains previously deemed "unidentifiable" by Dr. Zhang in his initial Medical Examiner Reports, Defendants now want the Court to allow them to introduce this "newly discovered" evidence to help them argue that 17-year-old Javier Arturo Sandate-Urrutia, the passenger, was actually the driver. Defendants' very late expert disclosure must be precluded on various grounds. The most obvious is Defendants' violation of the Court's Scheduling Order. /// ///

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II.

Argument. A. Standard of Review. Improper admission of evidence in violation of F.R.E. 701(C) is

subject to harmless error analysis. United States v. Griffin, 324 F.3d 330, 347-48 (5th Cir. 2003); Bank of China, New York Branch v. NBM, LLC, 359 F.3d 171 (C.A. 2 N.Y. 2004). The standard of review for an order precluding expert witness testimony is abuse of discretion. Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188 (C.A. Mass. 2006). B. Defendants' Late Disclosure Violates the Court's Scheduling Order.

The Court's Scheduling Order of May 19, 2004, required Defendants to disclose their experts and reports by August 16, 2004. After several requests for extensions, discovery closed February 15, 2005. The Medical Examiner's reports and the death certificates identifying the respective bodies have been available and known to the parties since the inception of the litigation. Attached hereto as Exhibits A and B, respectively, are true and correct copies of the Medical Examiner's reports and death certificates. In their Initial Rule 26(a)(1) Disclosure Statement and all that followed, Defendants contended that Jose Urrutia was the driver (attached hereto as Exhibit C). Realizing that Defendant Ekdahl's story is incredible and that trial is imminent, Defendants now want to change their disclosures and add a new expert. There is absolutely no reason why Defendants could not have raised this issue during the litigation and conducted discovery to determine scientifically and unequivocally who was driving. The truth is that, like Plaintiffs, Defendants did not believe there to be a real issue regarding the identity of the driver of the Urrutia vehicle. The information from family members regarding the type of clothing worn by Jose Urrutia and the fact he was carrying cash in large denominations is

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consistent with the clothing and money found on the body of the driver. Dr. Zhang's own report corroborated the existence of this clothing, as well as the fact that the driver was found to have a wallet with remnants of a $100 bill in it. See Amendment to Medical Examiner's Report of Investigation Case #03-01652 at page 2 (clothing and personal effects). Defendants are simply trying to stall these proceedings. C. F.R.C.P. 37(c)(1) Requires the Court to Preclude Defendants' Newly Disclosed Evidence.

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 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). In this case, Defendants cannot show any justification, let alone substantial justification, for their failure to raise the issue regarding the driver of the Urrutia vehicle and obtain a qualified expert, upon reliable principles and methods, properly applied, to opine that Javier SandateUrrutia was the driver of the deceased's vehicle. Certainly waiting until twoplus years after the deadline for expert disclosures and eleven months after the close of discovery to disclose an entirely new expert with contradictory

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opinions, would render the Court's Scheduling Order and the disclosure rules a mockery. Defendants' argument that they did not locate Dr. Zhang until March 2006 is irrelevant. Defendants admit that they did not attempt to locate Dr. Zhang until November 2005, well after the close of discovery and more than two years after they were required to disclose experts and opinions. Moreover, in their Notice of Newly Disclosed Evidence, Defendants suggest they were simply trying to locate Dr. Zhang to assist as to foundational issues relating to the Medical Examiner's findings, and had listed the Chief Medical Examiner out of an abundance of caution as a replacement witness. It now appears that their intentions in providing Dr. Zhang with photographs of the deceased were very different. Even assuming Defendants could establish substantial justification for their very late disclosure, the late disclosure is harmful to Plaintiffs and thus it must be precluded. At this point in time, all discovery has been completed. Only trial on the merits remains. To allow this late disclosure which attempts to suggest that the minor Javier Sandate-Urrutia was the driver, on such flimsy foundation and utter lack of scientific bases, would make it nearly impossible for Plaintiffs to contest. Had the disclosure been timely made, Plaintiffs would at a minimum have taken the deposition of Dr. Zhang to inquire as to the foundation and bases for his opinions and carefully crossexamined him. Plaintiffs would then have had the opportunity to name their own expert to perhaps counter Dr. Zhang's opinions and/or bring a motion in limine to bar Dr. Zhang's opinions for lack of adequate foundation/reliability pursuant to Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Thus, pursuant to Rule 37(c)(1), the Court is required to preclude Defendants' late disclosure for trial, hearing or motion because the failure to timely disclose is not harmless to the Plaintiffs.

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III.

Plaintiffs' Counsel Does Not Have a Conflict of Interest. Defendants have reasserted their claim alleging that Plaintiffs' counsel

has a conflict of interest. This time, Defendants argue that because they believe Javier Sandate-Urrutia was not a passenger, but instead the driver of the 1979 Ford 1-1/2 ton flatbed truck, and because Defendants allege that the driver of that vehicle pulled out in front of Defendant Ekdahl, that Plaintiffs' counsel cannot represent both driver and passenger because it constitutes conflict of interest. On June 5, 2006, pursuant to the Court's request, Plaintiffs submitted a Supplemental Trial Brief wherein Plaintiffs' counsel certified that Plaintiffs had met with independent counsel and that, after consultation with independent counsel, Plaintiffs fully informed, executed written waivers with respect to any potential or technical conflict of interest. All Plaintiffs, meaning the family members bringing an action for and on behalf of the death of Jose Urrutia, have met with independent counsel and signed written waivers. The mother and father of the minor Javier Sandate-Urrutia similarly met with separate independent counsel and executed a knowing, written waiver. In both cases, both families are satisfied with the representation of Plaintiffs' counsel and want Plaintiffs' counsel to continue to represent them in this matter. Therefore, regardless of how Defendants wish to couch the issue, Plaintiffs' counsel has more than met any and all ethical requirements regarding the waiver of any potential or technical conflict of interest. IV. Defendants' Objection to Plaintiffs' Expert Cecil Lane Lacks Merit. Defendants continue to misconstrue the holding in Trigon Insurance Co. v. U.S., 204 F.R.D. 277 (E.D. Va. 2001). The ghostwriting comments by the court in Trigon are worlds apart from the parallels Defendants try to

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articulate in this case. In Trigon, other qualified experts were conducting analyses and preparing reports that were represented to be those conducted and prepared by the government's expert without any knowledge or independent evaluation by the government's expert. That is not the case in this matter. As clearly established by Mr. Lane's affidavit, he himself did the work. The fact that someone other than himself also did the same work does not in any way take away from his analysis and the reaching of his own opinions. V. Conclusion. A. In conclusion, the Court must preclude Dr. Zhang's new

opinions and evidence because Defendants cannot show substantial justification and because Plaintiffs would be harmed. B. Plaintiffs have all knowingly waived any potential conflict of interest in having Plaintiffs' counsel represent both deceaseds' wrongful death claimants. C. opinions. Dated this 17th day of July, 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 July 17, 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 and S. Lee White. s/Augustine B. Jimenez III Cecil Lane is properly qualified to testify regarding his expert

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