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' SUPPLEMENTAL TRIAL BRIEF

Plaintiffs hereby submit their supplemental trial brief to address the issues raised by Defendants in their trial brief dated March 6, 2006, and as discussed during the pretrial conference held on March 13, 2006. I. Plaintiffs Have Complied With E.R. 1.7(a)(2). Defendants contend that Plaintiffs' counsel has a conflict of interest under E.R. 1.7(a)(2) because Plaintiffs' counsel represents the family members of the deceased driver as well as the family members of the deceased passenger of a vehicle rear-ended by Defendants' semitractortrailer. It is clear that Defendants have raised this issue at this late date in an attempt to stall these proceedings. As Plaintiffs' counsel advised the Court during the pretrial conference on March 13, 2006, all Plaintiffs were properly informed of the issues in the case, including Defendants' contention that Mr. Urrutia (driver) was partly at fault in causing the accident and the conflict issue. Plaintiffs knowingly

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waived any conflict of interest. Notwithstanding, the Court requested that Plaintiffs' counsel have the parents of the deceased minor meet with independent counsel to be advised regarding their rights, the issues in the case, and the potential conflict of interest. Plaintiffs' counsel hereby certifies that Plaintiffs met with independent counsel on April 14, 2006, and executed signed waivers of any and all conflicts and requested the ongoing representation of Plaintiffs' counsel. In regard to the technical conflict, it is significant to note that Mr. Urrutia, the driver of the 1979 Ford whom Defendants allege was partly at fault, is and was essentially judgment proof, meaning he had no appreciable assets, was a resident of Mexico, and had no liability insurance whatsoever. Thus, it would not be in the interests of the passenger's parents to assert any claims against the driver's estate. Moreover, and as previously explained, all claimants in this matter are relatives and extended family members. Plaintiffs have never intended or desired to make a claim against Mr. Urrutia or his estate. The estate of Mr. Urrutia is not a party to this action, and no lost wages claim has been brought. Thus, while this matter may present a technical conflict of interest, upon analysis, it is clear that no actual conflict exists and to the extent any does exist, it has been knowingly waived, beyond those required under E.R. 1.7. E.R. 1.8(g) Does Not Apply. Defendants' contention that a conflict exists under E.R. 1.8(g) because Plaintiffs previously made aggregate settlement claims is of no moment. First, Defendants have rejected each and every demand for settlement in this case. There is currently no demand for settlement outstanding in this matter, aggregate or otherwise; thus, E.R. 1.8(g) cannot apply. Beyond this, Plaintiffs' counsel is not at liberty to discuss communications with its clients relative to settlement except that Plaintiffs are and were familiar with

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E.R. 1.8 and that no conflict exists. The rule itself allows for joint and aggregate settlement demands upon certain circumstances. Because information regarding prior settlements is not admissible in trial, Defendants' contention that this will somehow prejudice the proceedings is absurd. II. Plaintiffs Have But One Expert. Defendants' complaint that Plaintiffs' expert Cecil "merely perused" a report drafted by his associate Charles Roush and only conducted research regarding the phase of the moon is a gross misrepresentation. Defendants cite the case of Trigon Ins. Co. v. U.S., 204 F.R.D. 277 (E.D. Va, 2001), for the proposition that an expert cannot merely peruse a report drafted by someone else and sign his name to it. However, Trigon does not stand for this proposition, and more importantly, Cecil Lane did not simply peruse the draft report. Trigon is a case involving spoliation of evidence. In that case, Trigon Insurance sued the I.R.S. for denying taxpayer refunds for losses incurred from the cancellation of certain contracts. The court held that the government had a duty to preserve correspondence between experts and their consultants, and the destruction of such evidence warranted sanctions for spoliation of evidence. Trigon did not deal with the issue of whether a testifying expert is permitted to review the work of his associate and adopt the report. Thus, Trigon has no application to this matter. In fact, Plaintiffs were unable to find any cases that preclude an expert from analyzing the same information reviewed by his associate in formulating his opinions, and then signing the report. More importantly, Cecil Lane independently reviewed the same information. Attached hereto as Exhibit 1 is the Affidavit of Cecil H. Lane establishing that he independently reviewed the case material, including depositions and records,

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the research information and the applicable Federal Motor Carrier Safety Regulations. The fact that he may not have actually prepared the initial report (i.e., typed it) is not a basis to preclude his testimony. Defendants cannot cite any case to support their position and have misrepresented the holding in Trigon.

Dated this 5th day of June, 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 June 5, 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

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