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 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 ) ) ) ) ) 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 DEFENDANTS' SUPPLEMENTAL TRIAL BRIEF: NOTICE OF NEWLY DISCLOSED EVIDENCE

(Assigned to the Honorable Paul G. Rosenblatt)

Defendants hereby submit their Supplemental Trial Brief. In response to Plaintiffs' Supplemental Trial Brief, Defendants hereby submit Defendants' Supplemental Trial Brief and give notice of newly disclosed evidence that has just come to light. Nothing defendants have done in preparation for trial has been for the purpose of delay.

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At the last Pretrial Conference, the court specifically inquired with defendants whether there was any issue on who was the driver. See March 13 2006 Pretrial Conference Transcript, Page 7, lines 22-25, Exhibit 1. The court also asked what could be contested if Javier was found outside the passenger's side of the vehicle and Jose was behind the steering wheel. Defense counsel responded that the Identification of Javier is what is contested. In other words, the body next to the passenger side was not clearly Javier's, and the body behind the steering wheel was not clearly Jose's. In fact, Dr. Zhang has now issued an affidavit, Exhibit 2, see below, that clarifies that Javier's body is the one that was behind the steering wheel, and Jose's body was the one located near the passenger side of the vehicle. I. Medical Examiner Dr. Zhang has been located and during preparation for trial he concluded that the body found behind the steering wheel was Javier Arturo Urrutia Sandate age 16 and Jose Luis Arrieta Urrutia age 55 was the person found located outside the vehicle. Dr. Zhang was the medical doctor with the Maricopa County Medical Examiner's office who performed the autopsies on the driver and passenger of the Urrutia truck. The driver and the passenger are deceased as a result of the collision. Their family members brought suit for wrongful death. In November 2005, while preparing the first Joint Pretrial Statement, defendants discovered that Dr. Zhang had left the Maricopa County Medical Examiner's office, and thus out of an abundance of caution defendants listed the Chief Medical Examiner as a replacement witness. He was expected to testify as to foundational issues related to the admissible portions of the Medical Examiner's findings. Beginning in November, 2005, defendants began efforts to locate Dr. Zhang. All such efforts failed between November 2005 and March 16, 2006.

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During the March 13, 2006 pretrial conference the court pressed defense counsel on the subject of whom in fact was driving. See Exhibit 1, Pretrial Conference Transcript, page 7, lines 22-25. Defense counsel offered at that time that the plaintiffs could stipulate that Jose was driving. Transcript, page 8, lines 1-3. 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, page 25, line 25, page 26, lines 1-3. The lack of a response by plaintiff's counsel to the open invitation to stipulate on the subject was puzzling to all defense counsel present. Immediately thereafter a massive effort to locate Dr. Zhang was resumed. Defendants located Dr. Zhang in the New Jersey Medical Examiner's office, where Dr. Zhang presently works as a deputy medical examiner. Once located, Dr. Zhang was given the opportunity to review materials, photographs, and his report. In addition, although the Court indefinitely continued the trial date for this case so that plaintiffs' counsel could attempt to obtain the written waivers required arising from a conflict of interest, 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 autopsied under case number 03-01652 as the body of Javier Arturo Sandate-Urrutia. Likewise, the body that Dr. Zhang examined in case number 03-01653 is the body of Jose Luis Urrutia-Arrieta. See Exhibit 2, Affidavit of Dr. Zhang.

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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. Given Dr. Zhang's present opinions, this clarifies the significant disputed issues of law to include the following: Comparative Fault by Jose Luis Urrutia-Arrieta. · Given the fact that Javier Arturo Sandate-Urrutia was driving, Jose Urrutia must have given permission. Javier Sandate was an inexperienced, unlicensed minor. The vehicle was a 1979 1.5 ton Ford F350 manual transmission flatbed that was hauling paint and appliances. Javier had had limited sleep prior to leaving for the trip. Jose, the owner of the vehicle had three hours of sleep to drive from Phoenix to Juarez, Mexico. I-10 is a dangerous high speed interstate freeway. Causing or permitting Javier Sandate to drive was Negligent Entrustment for which Jose Urrutia is comparatively at fault for the injuries to himself and to Javier Sandate. · Jose Luis Urrutia-Arrieta loaded or helped to load the Urrutia vehicle, and exceeding the safe towing capacity of the Urrutia vehicle was contributory negligence for which Jose Urrutia is comparatively at fault for the injuries to himself and to Javier Sandate.

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Comparative Fault by Javier Arturo Sandate-Urrutia. · Javier Arturo Sandate-Urrutia was driving a 1979 1.5 ton Ford F350 manual transmission flatbed, a vehicle he was unaccustomed to driving. The vehicle was loaded with five-gallon buckets of paint, and with appliances. It was 3 a.m. on an unlit stretch of I-10, halfway between Phoenix and Casa Grande, Arizona. The speed limit in this area is 75 mph. Javier entered the freeway from the shoulder about a mile beyond the closest freeway on-ramp. When Javier entered the freeway, he did not have his lights on until he actually entered the lane, making him nearly invisible until he turned on his lights. In addition, although the other vehicles were traveling at or near the posted speed limit of 75 mph, Javier never attained a speed greater than 36 mph, a difference in speed of nearly 40 mph. For these reasons, he was contributorily negligent; and by reason of which Javier Sandate is comparatively at fault for the injuries to himself and to Jose Urrutia. · Javier Arturo Sandate-Urrutia loaded or helped to load the Urrutia vehicle, and exceeding the safe towing capacity of the Urrutia vehicle was contributory negligence for which Javier Sandate is comparatively at fault for the injuries to himself and to Jose Urrutia. Liability for an Unlicensed Minor · Now that it is known that Javier was driving the Urrutia vehicle at the time of the collision, defendants contend that A.R.S. §28-3163 applies. This section reads as follows:

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An owner of a motor vehicle who causes or knowingly Permits an unlicensed minor to drive a vehicle on a highway and a person who gives or furnishes a motor vehicle to an unlicensed minor are jointly and severally liable with the minor for damages caused by the negligence or willful misconduct of the minor in driving the vehicle. ·

Defendants shall supplement their Jury Instructions to include a Jury Instruction involving this statute.

II.

Plaintiffs' counsel has the conflict of interest, not plaintiffs. Plaintiffs' counsel appears to continue to have this conflict of interest. He is in violation of the court's order if he did not obtain a knowing and intelligent waiver from the Statutory Beneficiaries of Jose Urrutia as against Javier Sandate. The court made independent inquiry with plaintiff's counsel who appeared at the

Pretrial Conference to be unable to comprehend the issue. The court had to coach the attorney into grasping the significance of the appearance of a conflict problem. If the need to obtain waivers was so obvious that raising this need was merely a delay tactic then plaintiffs' counsel would have obtained the written waivers within days, no delay would have occurred, and the court would already have reviewed them. All of the delay was caused solely by plaintiffs' counsel's failure to understand. Even now it appears he does not get it. More importantly, it appears from plaintiffs' Supplemental Trial Brief that he only obtained waivers from one set of family members instead of both families. According to the court's order, plaintiffs' counsel needed to obtain waivers from each and every plaintiff. During the pretrial conference on March 13, 2006 defendants made it clear that the identity of the driver of the Urrutia vehicle was uncertain. Therefore any set of decedent claimants could assert that the other decedent plaintiff was

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at fault for the accident. Because of this, plaintiffs' counsel was obligated to obtain waivers from all of his clients. Whether he did this or not remains unclear from Plaintiff's Supplemental Trial Brief. Under the rules, plaintiffs' counsel has to obtain written waivers from all plaintiffs in order to represent all plaintiffs because of the conflict of interest. Plaintiffs' argument that the families would not blame each other has no merit. The ethical rules do not contain an exception for when counsel does not think that relatives and extended family members would desire to make claims against each other. Families sometimes sue each other. Defendants do not raise plaintiffs' counsel's ongoing failure to comply with E.R. 1.7 (a)(2) as a delay tactic. It has now risen to the level of disobedience to a court order. Now that everyone has realized that the need for waivers exist defendants are duty-bound to remind plaintiff that he is still in violation of the ethical rule. Defendants do not seek to see or read the waivers. However, defendants do move for the court to order plaintiffs' counsel to present for in camera inspection waivers from each and every derivative plaintiff in the case. Defendants will certainly be satisfied with the court's review. Defendants do not want to be precluded from cross-examination on this very sensitive subject nor do defendants desire to raise the subject until all such waivers are firmly in place so as to avoid causing undue suspicion by the jury upon the court or legal system. The waivers need to be in place prior to the start of trial.

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III.

Plaintiffs' misconstrue the basis for defendants' objection to testimony by Cecil Lane as solely involving the One Expert Rule. Instead, defendants object to Cecil Lane because he is merely parroting an associate's report rather than testifying to his own opinions. Plaintiff has claimed that Trigon Ins. Co. v. U.S., 204 F.R.D.277 (E.D. Va., 2001)

was merely a case involving spoliation of the evidence and thus has no application. Obviously, plaintiff did not review the entire case. In section III of Trigon, 204 F.R.D. at 291, the court conducted a discussion of ghost writing, appropriately titled "Ghost Writing". The court defined ghost writing of a testifying expert's report as "the preparation of the substance writing of the report by someone other than the expert purporting to have written it." Id. In fact, the court went on to say that "unquestionably, Rule 26 requires an expert witness to prepare his own Rule 26 Report." It is also remarkable that plaintiffs are unable to find any cases that indicate that an expert's report must "be based on the expert's own valid reasoning and methodology." Trigon, at 295, citing Fed.R.Evid. 702 and Daubert, 509 U.S. 579 (1993). Cecil Lane may actually be a trucking regulations expert, but that is not all that is required for him to testify. The expert's opinions must have been fairly and fully disclosed, and the report must "be based on the expert's own valid reasoning and methodology." Id. That is not what happened here. Instead, the report was based on the reasoning and methodology of a trial consultant. Mr. Lane merely reviewed the phases of the moon, according to his sworn deposition testimony. He then merely parroted or "concurred" with the consultant's report. For these reasons, Lane should be precluded from testifying. Plaintiffs also claim that defendants misrepresented the extent of the work that Cecil Lane did in the preparation of the Expert Report. To prove this point, plaintiffs

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have provided Lane's affidavit which attests that he did review more than the phase of the moon. However, this conflicts with Mr. Lane's sworn testimony in deposition. See Exhibit 3, Lane Deposition dated August 24, 2005, pages 11 and 12. If the court is not yet convinced that Lane should be precluded from testifying, because of this direct conflict, the court should satisfy itself prior to trial that Mr. Lane's testimony will not be perjury by conducting voir dire of the witness.

RESPECTFULLY SUBMITTED this 12th day of July, 2006.

STRUCKMEYER & WILSON

s/Garvey M. Biggers____________________ 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)

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COPY (paper) of the foregoing DEFENDANTS' SUPPLEMENTAL TRIAL BRIEF: NOTICE OF NEWLY DISCLOSED EVIDENCE mailed/hand-delivered (*) this 12th 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/Garvey M. Biggers______________

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