Free Pretrial Order - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA NO. CIV 03-1892 PHX-ROS

TERESA AUGUST, a single woman, Plaintiff,
v. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife, Defendants.

JOINT PROPOSED PRETRIAL ORDER

Pursuant to the Court's Order entered September 20, 2006, following is the Joint Proposed Pretrial Order to be considered at the Final Pretrial Conference set for December 15, 2006 at 1:30 p.m. A. PRETRIAL COUNSEL FOR THE PARTIES PLAINTIFF: Daniel B. Treon Stephen E. Silverman Kelly Jo Treon & Shook, PLLC 2700 North Central Avenue, Suite 1000 Phoenix, AZ 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Daniel Treon Cell: (602) 695-6317 Stephen Silverman Cell: (480) 326-6787 [email protected] [email protected] [email protected]

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DEFENDANTS: Kathleen L. Wieneke Jennifer L. Holsman Jones, Skelton & Hochuli, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, AZ 85012 602-263-1700 (phone) 602-263-1943 (fax) [email protected] [email protected] B. STATEMENT OF JURISDICTION/VENUE

This Court has jurisdiction based on 28 U.S.C. §§ 1331 and 1343. The Court has jurisdiction over the state law claims pursuant to 28 U.S.C. §§ 1367 and 1441(c). C. NATURE OF ACTION

PLAINTIFF: This is an excessive use of force of case brought under 42 USC §1983 by Teresa August. Plaintiff Teresa August contends that Defendant City of Phoenix Police Officers used excessive force when they arrested her on June 10, 2002. Plaintiff seeks damages for personal injuries suffered during her arrest and as a result of her arrest. DEFENDANTS: Plaintiff Teresa August filed this action under 42 U.S.C. § 1983 alleging state and federal claims against the City of Phoenix and its officers for actions they took while investigating a domestic violence incident. Plaintiff seeks damages for personal injuries sustained during her arrest. Defendants deny liability and damages. Defendants contend that any force used to effectuate Mrs. August's arrest was reasonable under the circumstances and that the officers are entitled to qualified immunity. D. JURY/NON-JURY.

A jury trial has been requested. The Parties stipulate that the request was timely and properly made.

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E.

CONTENTIONS OF THE PARTIES

PLAINTIFF: Although pursuant to the Court's September 20, 2006 order, Teresa August's state law claims for excessive force and negligence still remain, she chooses only to pursue her claim for excessive force under 42 USC §1983. She will not assert any claim against the City of Phoenix, nor will she assert any state law claim for excessive force or negligence. In order to prevail on this excessive use of force claim, the Plaintiff must prove the following elements. 1) 2) 3) The acts of the police officers in effecting her arrest were intentional; The police officers acted under color of law; and The acts of the police officers were the cause of the deprivation of the

Plaintiff's rights protected by the Constitution and the laws of the United States. 9th Circuit Model Civil Jury Instructions, 11.1 Violations of Federal Civil Rights ­ Elements and Burden of Proof. The deprivation of Teresa August's federal constitutional rights occurred because the officers unreasonably seized her. To prove an unreasonable seizure, Plaintiff must prove that a law enforcement officer used excessive force in making a wrongful arrest. Any additional force, however slight, constitutes unnecessary and excessive force and its actual as a battery. Bustamante v. City of Tucson, 145 Ariz. 365, 701 P.2d 861 (App. 1985). The court uses an "objective reasonableness" standard in determining whether or not law enforcement officers used force while making an arrest or seizure was appropriate under the 4th Amendment. Graham v. Connor, 490 US 386, 388 (1989). Factors to be considered in determining the "reasonableness" of the force used include the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether she is actively resisting arrest or attempting to evade arrest. Tennessee v. Garner, 471 US 1, 8-9 (1985). The officers' claim for qualified immunity failed at the summary judgment phase. They are not entitled to it given the extreme force necessary to cause the injury in question, and because they do not state which of them was the officer to have a hold of
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Teresa's arm at the time of the injury. Since the officers claim that Teresa injured herself or that she would not have been injured but for struggling, and since they do not establish which of them actually injured her, they have the burden of proving what caused her injury under the single injury rule which shifts the burden of allocating the damages to the defendant. DEFENDANTS: Pursuant to the Court's Order dated September 20, 2006, the following claims remain: (1) Teresa August's excessive force claim under 42 U.S.C. § 1983 against Defendants Griffin, Lynde, Dunn and Monson; and (2) Teresa August's state law claim for excessive force. (1) Excessive Force Under 42 U.S.C. § 1983 Against Individual Police Officer Defendants.

Plaintiff asserts that her constitutional rights have been violated under 42 U.S.C. § 1983 by the police officers. The Civil Rights Act of 1871 (42 U.S.C. § 1983) provides that "every person, who, under color of any statute, ordinance, regulation, custom or usage of any state....subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law..." 42 U.S.C. § 1983. A "person includes public officials in their individual capacity. City of Phoenix v. Yarnell, 184 Ariz. 310, 316, 909 P.2d 377, 383 (1995). Therefore, police officers face liability under § 1983 when they commit a constitutional tort or are personally involved in the alleged unconstitutional act. In determining whether a law enforcement officer's force while making an arrest or seizure was appropriate under the Fourth Amendment, the Court must use an "objective reasonableness" standard. See Graham v. Connor, 490 U.S. 386, 388 (1989). The

reasonableness of the force must be viewed from the perspective of a reasonable officer at the scene, rather than with the benefit of 20/20 vision of hindsight. Id. at 393, 396. Further, the right to make an arrest or investigatory stop allows the officer to use some
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degree of physical coercion or threat. See Terry v. Ohio, 392 U.S. 1, 22-27 (1968). Factors to be considered in determining the "reasonableness" of the force used include the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether she is actively resisting arrest or attempting to evade arrest. See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). A police officer's failure to exercise due care in the exercise of his duties, is not sufficient to establish a violation of constitutional rights. A Plaintiff who suffers an injury due to the negligence of an individual officer does not set forth the basis for a constitutional violation. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986); Buckey v. County of Los Angeles, 968 F.2d 791 (9th Cir. 1992). Contrary to Plaintiff's claim, state above, at page 4, line 8, there is no claim of "wrongful arrest" or "unreasonable seizure" as it relates to Plaintiff's arrest. Only the amount of force used to effect the lawful arrest of Plaintiff remains at issue after the Court's ruling on the Motion for Summary Judgment.. Further, Defendants have conceded that they were acting under color of state law at the time of the incident. While punitive damages are available against individual defendants under Section 1983 to punish violations of constitutional rights, they may be awarded only "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). The Court has ruled that there was probable cause to arrest Plaintiff for the assault on Sam Hickey, disorderly conduct and resisting arrest. Probable cause and exigent circumstances justified the officers entry into Plaintiff's home to effect her arrest.

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Defendants assert the following affirmative defenses: 1. Qualified Immunity: The doctrine of qualified immunity protects a police officer not only from liability, but from the lawsuit itself. See Mitchell v. Forsyth, 472 U.S. 511 (1985). Under this doctrine, an officer is immune from liability for excessive force where the officer mistakenly believes the amount of force used is appropriate. See Saucier v. Katz, 533 U.S. 194, 202 (2001). To determine whether Defendants are entitled to qualified immunity, the Supreme Court applies a two part inquiry: (1) the court must determine whether a constitutional right has been violated; (2) the court must then determine whether the right was clearly established. (Saucier, 533 U.S. at 198. The legal issue for the Court is "whether, in light of clearly established principles governing the conduct in question, the defendant officers could have reasonably believed that their conduct was lawful." Id. at 194-195; See Hunter v. Bryant, 112 S.Ct. 534, 537 (1991). Qualified immunity allows for mistaken judgments and protects "all but the plainly incompetent or those who knowingly violate the law." Sinaloa Lake Owners Assoc. v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 1995). 2. Failure to Comply with Lawful Police Orders: Defendants allege that Plaintiff failed to comply with lawful police orders on the night of June 10, 2002 and in failing to do so caused or contributed to her injuries, all of which would reduce any amount of recovery owing thereto. See A.R.S. § 28-622. 3. Defendants allege that the officers were justified in their use of force under the Constitution and that no constitutional violation occurred. Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 1867 (1989); Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001). 4. Any damages suffered by Plaintiff was the result of actions or inactions of Plaintiff, and not of the Defendants. See A.R.S. § 12-2506, et. seq. 5. Defendants' actions were undertaken with valid, probable cause, and in good faith. (2) State Law Claim for Excessive Force.

Plaintiff Teresa August asserts that during her arrest on June 10, 2002, the named Defendant officers used excessive force against her. This claim is asserted against all Defendants. Although Plaintiff has stated herein that she is not pursuing this claim, she has not yet dismissed the claim and therefore, it remains in the case.
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The Arizona Tort remedy for excessive force is assault and battery. To establish a state law claim of excessive force, Plaintiff must prove that the Defendant intentionally caused a harmful or offensive contact with the Plaintiff to occur. Johnson v. Pankratz, 196 Ariz. 621, 2 P.3d 1266 (2000). Defendants assert the following affirmative defenses: 1. A person is justified in using physical force against another if in making or assisting in making an arrest or detention or in preventing the escape after arrest or detention of that person, such person uses or threatens to use physical force and all of the following exist: a. A reasonable person would believe that such force is immediately necessary to effect the arrest or detention; b. Such person makes known the purpose of the arrest or believes that it is otherwise known or cannot reasonably be made known to the person arrested or detained; c. A reasonable person would believe the arrest or detention to be lawful. See A.R.S. § 13-409. 2. A person is justified in using physical force against another to the extent the person reasonably believes that physical force is immediately necessary to prevent the commission of aggravated assault under A.R.S. § 131204(A)(1) or (2). A person is presumed to be acting reasonably if he is acting to prevent the commission of this offense. A.R.S. § 13-411. 3. Failure to Comply with Lawful Police Orders: Defendants allege that Plaintiff failed to comply with lawful police orders on the night of June 10, 2002 and in failing to do so caused or contributed to her injuries, all of which would reduce any amount of recovery owing thereto. See A.R.S. § 28-622. 4. 5. Plaintiff's actions were not in self-defense. Defendants allege that the officers were justified in their use of force. State v. Fontes, 195 Ariz. 229, 986 P.2d 897 (App. 1998).
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6.

Plaintiff's claimed injuries and damages were not caused by Defendants' actions, but by her own negligent conduct and her assumption of the risk. Hildebrand v. Minyard, 16 Ariz. App. 583, 585, 494 P.2d 1328, 1330 (1982); Chavez v. Pima County, 107 Ariz. 358, 360, 488 P.2d 978, 980 (1971); Ariz. Const., art. 18, § 5

7.

Any damages suffered by Plaintiff was the result of actions or inactions of Plaintiff, and not of the Defendants. See A.R.S. § 12-2506, et. seq.

8.

A person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. See A.R.S. § 13-404.

9.

The threat or use of physical force against another is not justified to resist an arrest that the person knows or should know is being made by a peace officer, whether the arrest is lawful or unlawful. See A.R.S. § 13404(B)(2).

10.

Defendants' actions were undertaken with valid, probable cause, and in good faith.

11.

Immunity under A.R.S. § 12-712: This statute provides that the Defendants can be found not liable if the Plaintiff is harmed while the Plaintiff is attempting to commit, committing, or fleeing from a felony criminal act. Plaintiff was attempting to commit a felony at the time of her arrest. But see Sonoran Desert Inv., Inc. v. Miller, 213 Ariz. 274, 141 P.3d 754 (2006).

F.

STIPULATIONS AND UNDISPUTED FACTS1

1. Teresa August lives in a home on McLellan Avenue in North Central Phoenix. 2. Mrs. August was sixty-eight years old on June 10, 2002. 3. On June 10, 2002, Mrs. August lived with her nine-year-old grandson, Marcus Dakotah August, and intermittently her 17 year old grandson Sam Hickey, too.

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4. On June 10, 2002 Mrs. August called 9-1-1 regarding an altercation with her 17 year old grandson, Sam Hickey. 5. The four defendant police officers arrived and later went to arrest Mrs. August. 6. During the arrest, Mrs. August suffered a dislocated right elbow. G. 1. PLAINTIFF'S CONTENTIONS OF DISPUTED FACT That it was Sam Hickey and not she who was the aggressor at her house

and that she needed the assistance of the police in dealing with her mentally disturbed grandson. 2. That Officer Dunn's initial investigation failed to determine who the

aggressor was and that she had been assaulted by Sam Hickey; further, that she as the homeowner was telling Officer Dunn to remove from her property someone she did not want present and that he failed to act in response to this lawful request. 3. That after she talked with Officer Lynde for several minutes, she went back

into her house and Officer Lynde did not try to stop her or tell her she was under arrest or impede her return to her house in any way. She was upset that the officers had not removed Sam from her property (and upset about what Sam had done to her), but she was not acting like a screaming lunatic as the officers alleged. 4. That once inside her house she continued to talk with Officer Lynde for

several minutes through her front security screen door. There was no "barricade" going on. The matter of Dakotah's security, later alleged as the officers' grounds for wanting to get into the house, was not raised. After having a calm conversation with Officer Lynde, and in compliance with his request, she opened the door and let the officer into the atrium. She went to lock the door behind Officer Lynde, and he Officer Lynde complained that she was "locking him in" and that she could not do that. She then returned to the door to unlock it, did so, and was opening the door to let Officer Lynde out of the house. 5. At the moment she unlocked the door and opened it slightly, the other three

officers came bowling through her doorway and mobbed her. She did not know what was going on as they quickly went "hands on" with her. The officers "T-ed" her up
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and then went to handcuff her. While doing this, she complained loudly, and then screamed in pain as she felt her elbow being violently twisted and dislocating. 6. The officer and/or officers used an excessive amount of force on her arm

when effecting her arrest. 7. Teresa August suffered severe and debilitating injuries as a direct result of

the officer and/or officers' excessive use of force. 8. Teresa August made a complaint with the City of Phoenix regarding the

officers' treatment of her. As a result of making such a complaint, the City of Phoenix professional standards bureau should have instituted an investigation of the officers' conduct, which would have included securing radio dispatch transmissions of officers at the scene of Mrs. August's house. Tapes of the transmissions were not secured, and thus the officers' on-air statements about what was in fact unfolding, which evidence may have helped Teresa August, are lost. Instead of pursuing an internal affairs investigation however, the City of Phoenix stonewalled any such investigation when it did not take recorded statements from the officers. Phoenix persisted in this whitewashed investigation by hiring a police practices "expert" from within its own department, to avoid scrutiny from an outside third party expert. 9. The nature of the elbow dislocation alone shows that the force used by the

officers was excessive. Defendants cite emergency room physician Dr. Seligson for the proposition that Mrs. August had to have been struggling for such a dislocation to occur. But Dr. Seligson's opinions are without foundation and should not be admitted in evidence. Dr. Seligson was not competent to conclude this and later clarified that it would be impossible to someone to exert enough force to dislocate their own elbow. In any event, the testimony by Dr. Beth Purdy, Mrs. August's elbow specialist, is to the contrary. Importantly, the force of the dislocation was strong enough to cause an "avulsion" of the lateral collateral ligament, which is when bone fragments are ripped from the arm bone where the ligament attaches, much like a clump of dirt is ripped from the earth when pulling weeds. 10. Teresa August's criminal charges were pressed as an attempt to bolster

Defendants' "officialized" version of events, and yet the prosecutor moved to dismiss all of them "in the interests of justice." The fact of this dismissal may be admitted to
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rebut the defense of justification, which is what the defendants claim when they allege that they had to arrest Teresa to protect the minor grandson who remained in the house. H. DEFENDANTS' CONTENTIONS OF DISPUTED FACT

On June 10, 2002, Plaintiff Teresa August called 911 and demanded that the police come and remove Sam Hickey from her house. Mrs. August stated that her grandson was attacking her and that she wanted him out of her house. Mrs. August also admitted to throwing a remote control at Sam Hickey and stated that she had bit him on the hand when he wouldn't get off of the computer. Sam Hickey confirmed Plaintiff's claims and informed the 911 dispatcher that he had been injured by the remote control she threw at him. The 911 dispatcher then radioed the police about a domestic violence dispute taking place in Plaintiff's home. When Phoenix police officers arrived to the domestic violence call at the August home, Mrs. August was out of control, yelling, screaming profanities and uncooperative. She had already admitted to attacking her grandson and informed them that another minor child was inside the house. When Mrs. August ran into her house and locked the door behind her, locking herself and her young grandson inside, officers pleaded with her to open the door. When she finally related and allowed Officer Lynde inside, she immediately tried to lock him inside, creating an unsafe and dangerous situation. Fearing for their young colleague's safety, Sergeant Griffin and Officers Dunn and Monson stopped Plaintiff from locking the door and entered the house. Once inside, Plaintiff continued her verbal onslaught of abuse toward the officers. She would not cooperate and would not listen. When Mrs. August started to retreat deeper into the home, she was placed into investigative detention. Instead of complying with the officers' commands, Plaintiff unlawfully resisted, was combative, uncooperative and illegally refused to adhere to the officers' lawful authority, all while screaming profanities. An authorized and approved arm bar "hold" technique was used to assist in handcuffing Plaintiff in an effort to restrain her. All the while, she continued to illegally struggle and resist. Plaintiff was then taken to her front yard. Because she complained of
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discomfort in her right extremity, the Fire Department was called to medically assess her. Plaintiff was subsequently arrested at the scene for Resisting Arrest, a class 6 felony, one count of assault against Sam Hickey, a class 1 misdemeanor, and 1 count of disorderly conduct, a class 1 misdemeanor. Plaintiff was taken to the Arizona Heart Hospital for evaluation on an injury to her elbow. She was subsequently transported to the Maricopa Medical Center for further evaluation. The emergency room physician, Dr. Seligson, told the officers that "he had seen hundreds of people in handcuffs with dislocated shoulders but never elbows and that she must have really been fighting." Dr. Seligson testified during his deposition that Teresa would not have sustained the injury to her elbow had she not been struggling with the officers as they performed the arm bar hold. Teresa was treated and released from the hospital and never booked into jail. Teresa August was charged with disorderly conduct, A.R.S. § 13-2904; resisting arrest, A.R.S. § 13-2508; and assault, A.R.S. § 13-1203. The Arizona Superior Court made a finding that probable cause existed for Teresa August's arrest on June 10, 2002. This Court found that the officers' conduct in arresting Plaintiff for resisting arrest was lawful and legally justified. The PSB investigation conducted after this incident was unable to be completed because Mrs. August refused to be interviewed. Her attorney, Dan Treon, would not allow her to submit to an interview by PSB so that the investigation could be completed. Mr. Treon made no request for the preservation of audio tapes. Car to car or radio to radio transmissions are not recorded by the City of Phoenix so "tapes" are not capable of being retained. I. ISSUES OF LAW IN CONTROVERSY

PLAINTIFF: 1. USC §1983. 2. Whether the City of Phoenix Police Department breached its internal Whether Plaintiff has established her claims of excessive force under 42

policies and procedures in failing to procure and secure tape recordings of dispatch calls
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made by officers during their time at Teresa August's house, and whether Plaintiff will be entitled to a spoliation of evidence instruction for the Police Department's failure to obtain this information. 3. Whether the City of Phoenix Professional Standard's Bureau ("PSB")

Investigation caused or resulted in the loss of tape recorded evidence of the events transpiring at Teresa August's house (the dispatch calls). 4. Whether Defendants' use of internal, in-house "expert" Commander

Hynes, as their expert witness in police practices, maybe seen as a white-wash of the PSB investigation into Teresa August's complaints to the Police Department. 5. 6. Whether Defendants' expert witnesses will be allowed to opine. Whether Defendants will be allowed to cross exam witness and former

party Mark August regarding his interactions with his ex-wife on purely collateral matters. Defendants' investigator contacted Mark August's ex-wife of several years and attempted to dig up dirt on him and smear him with evidence of his and her domestic violence history from years gone by. Defendants allege that Mark August's communication with her on the subject of this investigation constituted witness tampering. Defendants have advised that 7. Defendants waste of judicial resources and valuable court time for refusing

to stipulate in evidence Plaintiff's medical bills and thus necessitating that Plaintiff call all of the medical services providers' custodians of records to testify that the charges are reasonable and customary. Defendants base this position based on their expressed intent to argue that they are responsible only for what Teresa August's health insurance company paid for her medical bills. This argument unequivocally violates the collateral source rule. 8. Whether the minor struggling that occurred between Sam Hickey and his

grandmother before police arrived could have contributed in any way to the dislocation of Teresa's elbow, as per Defendants' biomechanical expert witness, Michael Carhart. Plaintiff's treating physician, Dr. Beth Purdy, and orthopedic surgeon with a subspecialty in elbows, opines that it had nothing to do with the dislocation. 9.
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constitute a defense to her claim that the officers' use of force was excessive under 42 USC §1983. 10. Whether evidence of conflicts Teresa August had with employees of

Madison Meadows Middle School related to parking, and how she conducted herself during her interactions with them (and with the school resource police officer) are admissible. 11. 12. Whether Teresa August's employment records are admissible. Whether Teresa August lost any wages from her part time teaching job as a

result of the injuries she suffered. 13. Whether defendants are entitled to the qualified immunity defense when

none of them identifies which of them (and not one of them claims to be the one) who had his hand on Teresa August's right arm at the time she was injured, hence precluding any claim that any one of them could have been mistaken as to appropriateness of the amount of force applied. 14. Whether any officer at the scene can testify to his opinion about any other

officer's and/or officers' use of force as being appropriate. 15. Whether Plaintiff is entitled to attorneys fees under 42 USC §1988.

DEFENDANTS: 1. Whether Plaintiff negligently or intentionally placed herself in harm's way

on June 10, 2002, thereby causing her own injuries. 2. incident. 3. Whether Sergeant Griffin and Officers Lynde, Dunn and Monson engaged Whether Plaintiff suffered any injuries as a result of the June 10, 2002

in excessive force against the Plaintiff in violation of 42 U.S.C. § 1983. 4. claim. 5. 6. Whether Defendants are liable for any of Plaintiff's alleged damages. Whether Plaintiff may prosecute her alleged negligent PSB investigation

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qualified immunity. 7. 8. Whether Defendants engaged in any wrongful conduct as alleged. Whether and to what extent any damages allegedly suffered by Plaintiff

were the result of actions or inactions of Defendants. 9. 10. 11. 12. Whether Defendants' conduct was legally justified under state law. Whether and to what extent damages have been sustained. Whether Plaintiff is entitled to punitive damages. Whether Plaintiff has established a prima facie case of excessive force

under 42 U.S.C. § 1983. 13. Whether Plaintiff has established a prima facie case of excessive force

under Arizona state law. 14. Whether Plaintiff has established a prima facie case for negligent injury

under Arizona state law. 15. Whether Sergeant Griffin, Officer Dunn, Officer Lynde or Officer Monson

were the proximate cause of Plaintiff's alleged injury. 16. Whether Defendants acted in bad faith and with "wanton, willful, and

malicious" conduct on June 10, 2002. 17. 18. Whether Defendants are entitled to attorneys fees under 42 U.S.C. § 1988. All issues preserved in Defendants' Motion for Summary Judgment and

Motions in Limine. 19. Whether Plaintiff should be precluded from objecting to the admissibility

of the audio tapes of the 911 tape recording and interview of Plaintiff because she failed to answer Defendants' Request for Admission regarding the authenticity in good faith. 20. 21. Whether the PSB investigation was a subsequent remedial measure. Whether the Plaintiff's attorney is precluded from representing the Plaintiff

due to his role as a witness in this matter. 22.
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23.

Whether Plaintiff may challenge the legality of the officers' entry into

Plaintiff's home, Plaintiff's arrest or Mark August's arrest. 24. Whether Plaintiff is entitled to the amount of reasonable and necessary

medical expenses representing the amount the providers accepted as payment in full for services. 25. Whether Plaintiff should be allowed to call witnesses at trial who were not

previously disclosed. 26. Whether Plaintiff should be precluded from using any impeachment

evidence at trial because of her failure to disclose in her Response to Rule 34 Request for Production. J. SEPARATE TRIAL OF ISSUES

The parties are not aware of any issues that should be tried separately in this matter. K. WITNESSES

PLAINTIFF'S WITNESSES: 1. Plaintiff Teresa August

Plaintiff Teresa August is expected to testify regarding her claims and damages as related to the incident on June 10, 2002. Plaintiff will be called at trial. 2. Sam Hickey

Sam Hickey witnessed the officers storm Teresa's front door and instantly grab her and heard her yell in pain. He will testify at trial. 3. Pamela Hickey

Sam Hickey's mother. She witnessed Teresa August and the officers at the scene and will testify about the actions of the officers and Teresa's injuries. She will also offer testimony about the nature of Sam's mental health illnesses. She will testify at trial. 4. Mark August

Teresa August's adult son and father of Dakotah August. Dakotah August called
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his dad, Mark, on Mark's cell phone and cried, `the police are beating up grandma!' Mark will testify about his observations of his mother's injured elbow, and her damages. He will testify at trial. 5. Dakotah August

Teresa August's grandson who witnessed the officers arrest and injure his grandmother. He will testify about his personal observations of all events on June 10, 2002, and about his grandmother's damages. He will testify at trial. 6. Stephen August

Stephen August is expected to testify regarding his mother's claims and damages as related to the incident on June 10, 2002. He will testify at trial. Objection. Plaintiff never listed this witness in her Rule 26 Statement or in answers to discovery. 7. 8. 9. 10. 11. Defendant Officer Lyle Monson Defendant Officer Nicholas Lynde Defendant Officer Toby Dunn Defendant R. Griffin Lt. Joseph Tomory, #483 c/o City of Phoenix Police Department

Lt. Tomory is expected to testify regarding his PSB's investigation of Teresa August's complaints to the City of Phoenix Police Department regarding the officers' abuse of her. Lt. Tomory will be called to trial. 12. Officer Warren Brewer c/o City of Phoenix Police Department

Officer Brewer conducted the follow-up investigation. Officer Brewer may testify at trial. Objection. Plaintiff never disclosed this witness.

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13.

Sgt. John Balisk, #3545 c/o City of Phoenix Police Department

Officer Balisk conducted the follow-up investigation. It is anticipated he will testify about the results of his follow-up investigation. Officer Balisk may testify at trial. Objection. Plaintiff never disclosed this witness. 14. Sgt. Eric Wycoff, #5840 c/o City of Phoenix Police Department Sgt. Wycoff authored a report on the Use of Force and Citizen Complaint No. 02050 on July 15, 2002. It is anticipated Sgt. Wycoff will testify regarding his conclusions from that investigation. Sgt. Wycoff will be called at trial. 15. Custodian of Records c/o Arizona Heart Hospital 1928 East Thomas Road Phoenix, AZ 85016

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. 16. Custodian of Records c/o Maricopa Medical Center 2601 East Roosevelt Phoenix, AZ 85008

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. 17. Custodian of Records c/o Med Pro-ER Physicians/Radiology 3255 East Elwood, Suite 110 Phoenix, AZ 85034

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial.

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18.

Custodian of Records c/o CIGNA Healthcare ­ Surgicenter 2302 North 75th Avenue Phoenix, AZ 85035

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. 19. Custodian of Records c/o CIGNA Healthcare ­ Surgicenter 2302 North 75th Avenue Phoenix, AZ 85035

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. 21 Custodian of Records c/o Beth A. Purdy, M.D. 2610 North 3rd Street Phoenix, AZ 85004

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. 22. Custodian of Records c/o Beth A. Purdy, M.D. 2610 North 3rd Street Phoenix, AZ 85004

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. Defendants object to this witness as duplicative. 23. Custodian of Records c/o Beth A. Purdy, M.D. 2610 North 3rd Street Phoenix, AZ 85004

Plaintiff will call this Custodian of Records to confirm that the bills presented in
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Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. Defendants object to this witness as duplicative. 24. Custodian of Records c/o Beth A. Purdy, M.D. 2610 North 3rd Street Phoenix, AZ 85004

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. Defendants object to this witness as duplicative. 25. Custodian of Records c/o Alltel Mobile Telephone Company Judy Welch, Police Department Records and Identification Bureau

26.

Ms. Welch received a memo on September 24, 2002 from Communications Bureau commander Blake McClellan which stated that the recordings of radio broadcasts had been destroyed within 60 days of the date of the incident. She will be called to testify. Objection. Plaintiff never disclosed this witness. 28. Blake McClellan Commander of Communications Bureau

Appears to have authored a September 24, 2002 memo to Judy Welch of Records and Identification Bureau to advise that the recordings of radio transmissions made on June 10, 2002 were destroyed after 60 days. He will be called to testify. Objection. Plaintiff never disclosed this witness. DEFENDANTS' WITNESSES: Defendants request they be permitted to cross-examine Plaintiff's witnesses during Plaintiff's case, as opposed to be limited to the scope of direct.
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A. 1.

Will Be Called At Trial. Officer Toby Dunn, #5041 Phoenix Police Department

2.

Robert Griffin, #7161 Phoenix Police Department Officer Nicholas Lynde, #7518 Phoenix Police Department Officer Lyle Monson, #6972 Phoenix Police Department

3.

4.

Witnesses 1 through 4 listed above were present at the home of Plaintiff Teresa August on June 10, 2002, and they are expected to testify regarding their observations of what occurred and their involvement in the arrest of Teresa August. They will also testify regarding their background, training and experience. 5. Plaintiff Teresa August

Plaintiff Teresa August is expected to testify regarding her claims and damages relating to the subject incident on June 10, 2002. Plaintiff is expected to testify consistent with her deposition testimony in this matter. videotaped deposition during the trial. 6. Samuel (Sam) Hickey Defendants intend to use Plaintiff's

Sam Hickey is expected to testify regarding his knowledge and involvement in the incident that occurred with his grandmother Teresa August on June 10, 2002, which is the subject of this lawsuit. Mr. Hickey is expected to testify consistent with his recorded interview by Phoenix Police and his deposition testimony in this matter 7. 8. Captain Charles (Chuck) Lee Phoenix Fire Department Daniel Cheatum Phoenix Fire Department Witnesses 7 and 8 were employed with the Phoenix Fire Department at the time of the subject incident and responded to the call for medical assistance from Phoenix Police. The witnesses are expected to testify regarding their observations of the Plaintiff and the treatment Fire personnel provided her at the scene. Captain Lee and Daniel
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Cheatum will be called at trial. 9. Kathy Cramer Custodian of Records Phoenix Fire Department

Kathy Cramer is expected to lay foundation and verify the Fire Department EMS Incident Report [AUGUST0114 ­ 117] for treatment provided to Plaintiff on June 10, 2002, which is an exhibit listed by Defendants herein. Ms. Cramer may be called at trial for foundational purposes only. 10. Dan McNemee Phoenix Police Department c/o Jones, Skelton & Hochuli, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, AZ 85012

Mr. McNemee is employed as Administrative Supervisor with the Phoenix Police Department Communications Bureau. It is anticipated that he will provide information about the Phoenix Police Department Status Codes and will lay foundation for the CAD printouts for the incident on June 10, 2002. He will also address records and tape retention and recordings.. 11. Chris Cullen (Whitted) Formerly with Phoenix Police Department c/o Jones, Skelton & Hochuli, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, AZ 85012

Ms. Cullen (Whitted) was employed as a call taker for the Phoenix Police Department Communications Bureau on 6/10/02, and she was the call taker (serial # A1494) who spoke to Plaintiff when she dialed 9-1-1. Ms. Cullen is expected to lay foundation for the CAD printout, as well as the audio tape recording and the transcript of the Plaintiff's 9-1-1 call [Bates AUGUST01445­1456] on the date of the subject incident. 12. Custodian of Records Cigna Billing Dept.

The Custodian of Records for Cigna Billing Department will lay foundation for the Equivalent Value Statement pertaining to Plaintiff that was received in response to subpoena.
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13.

Custodian of Records Phoenix Union High School District

The Custodian of Records for Phoenix Union High School District is expected to testify regarding the employment records of Plaintiff received by Defendants in response to subpoena. 14. 15. Other Custodian of Records as Needed Officer Jerry Peterson, #5907 Phoenix Police Department

Officer Peterson was the Student Resources Officer at Madison Meadows School in 2004, which is located in Phoenix near the residence of Plaintiff Teresa August. Officer Peterson will testify that he has had several conversations with Teresa August about the subject matter of the current lawsuit, her complaints about the police, and has observed her act in a loud, aggressive manner. It is anticipated that Officer Peterson will testify consistent with the police report he prepared on May 4, 2004 regarding Teresa August's actions that day, as well as, prior conversations he has had with her at Madison Meadows School. B. 16. MAY BE CALLED AT TRIAL Gary Sklut Phoenix Fire Department Raphael King Phoenix Fire Department

17.

Witnesses 16 through 17 above were employed with the Phoenix Fire Department at the time of the subject incident and responded to the call for medical assistance from Phoenix Police. They are expected to testify regarding their observations of the Plaintiff and the treatment they provided her at the scene. 18. Officer Gregory Myracle, #6904 Phoenix Police Department

Officer Myracle is expected to testify that he spoke to Teresa August on the telephone when she called in to complain about a parking problem in front of her residence. He will testify that, during the course of their conversation, Mrs. August used
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profanity frequently and made some very derogatory comments about Phoenix Police Officer Jerry Peterson. Officer Myracle may be called at trial. 19. Diane Lynn c/o Madison Meadows Middle School 225 W. Ocotillo Road Phoenix, AZ 85013 (602) 664-7600 work

Ms. Lynn is expected to testify that she is/was employed as a secretary at Madison Meadows Middle School and that she was present on May 26, 2004, when Plaintiff Teresa August came into the office and began yelling at her in a loud voice regarding a complaint that people were parking in front of her residence and that she also made derogatory remarks about Phoenix Police Officer Jerry Peterson. Ms. Lynn will testify that Plaintiff Teresa August would visit the offices of Madison Meadows Middle School approximately once a month for a number of years complaining loudly about parking problems in front of her home. Ms. Lynn may be called at trial as an impeachment witness only. 20. Suzanne Mahon c/o Madison Meadows Middle School 225 W. Ocotillo Road Phoenix, AZ 85013 (602) 664-7610 work

Ms. Mahon is/was employed as principal at Madison Meadows Middle School and is expected to testify that she was present when Plaintiff Teresa August came into the school administrative offices on May 26, 2004, complaining loudly about persons parking in front of her residence. She will testify that Mrs. August was loud and used profanity often while yelling at her and Officer Peterson. Ms. Mahon may be called at trial as an impeachment witness only. 21. Kevin Sotomayor c/o Madison Meadows Middle School 225 W. Ocotillo Road Phoenix, AZ 85013 (602) 664-7600 work

Mr. Sotomayor was/is the assistant principal of Madison Meadows Middle School and he is expected to testify that he was in his office when Plaintiff Teresa August came into the school administrative offices on May 26, 2004, complaining loudly about persons
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parking in front of her residence. He will testify that Mrs. August was very loud and used profanity often while yelling at school personnel and that he could hear her in his office. Mr. Sotomayor may be called at trial as an impeachment witness only. C. 22. BY DEPOSITION Richard Seligson, M.D. Maricopa Medical Center 2601 E. Roosevelt Phoenix, AZ 85008

Dr. Seligson is a treating physician of the Plaintiff. Defendants' attorney took his deposition on September 9, 2004. Dr. Seligson will testify regarding his treatment of Teresa August at Arizona Heart Hospital on 6/10/02. Dr. Seligson is expected to testify consistent with his deposition testimony in this matter. Defendants intend to use Dr. Seligson's deposition testimony in lieu of live testimony at trial as designated by page and line number in Section "R," supra. D. 23. IMPEACHMENT Daniel Treon 2700 North Central Avenue, Suite 1000 Phoenix, AZ 85004 Mr. Treon represents the Plaintiff in this matter and informed the City of Phoenix Police Department that Teresa August would not participate or cooperate in a Professional Standards Bureau investigation of this matter. It is anticipated that Mr. Treon will testify consistent with several taped conversations between Lieutenant Tomory and Mr. Treon, his deposition testimony, and correspondence to Lieutenant Tomory. Daniel Treon may be called as a witness in this trial. 24. Mark August

Mark August is expected to testify regarding his knowledge of the facts and circumstances surrounding the incident on June 10, 2002. He is also expected to testify regarding his knowledge of the mental health and prior injuries of Teresa August. 25. Lt. Joe Tomory, #4883 Phoenix Police Department

Lt. Tomory was a sergeant with Phoenix Police on June 10, 2002, and he is
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expected to testify that he was assigned by the Professional Standards Bureau (PSB) to investigate the arrest of Teresa August on 6/10/02. Lt. Tomory is expected to testify regarding the reasonable attempts he made to conduct an investigation of this matter and that he was unable to complete his investigation due to Teresa August's and Dan Treon's failure to cooperate with the investigation. Lieutenant Tomory may be called at trial. L. EXPERTS

PLAINTIFF'S EXPERT(S): Defendants reserve all objections to Plaintiff's exhibits because Plaintiff did not provide copies of her exhibits to Defendants. 1. Beth Purdy, M.D. 2610 North 3rd Street Phoenix, AZ 85004

Dr. Purdy will testify regarding her the nature, severity and cause of Teresa August's dislocated elbow injury and Dr. Purdy's treatment thereof. She also will testify consistent with her rebuttal opinion regarding the cause of and severity of Teresa August's elbow dislocation. She also will opine that Defendants' expert biomechanical engineer, Michael Carhart, is simply wrong in his conclusions regarding the forces applied to Teresa August's elbow, particularly that she could not have caused her own elbow dislocation and that her interaction with Sam Hickey had nothing to do with the injury. Dr. Purdy will testify at trial. DEFENDANTS' EXPERTS: A. 1. WILL BE CALLED AT TRIAL Jeffery G. Hynes, Commander Phoenix Police Department c/o Jones, Skelton & Hochuli

Commander Hynes will testify that he has been employed with the Phoenix Police Department for 26 years. Commander Hynes is a recognized expert in relation to use of force. He has been a member on the Use of Force Board numerous times and has reviewed hundreds of reports involving use of force. Commander Hynes will testify that the arm-bar handcuffing/restraining technique is a standard technique used by all officers
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in the Phoenix Police Department. This technique is used to alleviate the likelihood of injury, however, the suspect's actions and resistance can determine if an injury may occur as in this subject case. 2. Michael Carhart, Ph.D. Exponent 23445 N. 19th Avenue Phoenix, AZ 85027

Dr. Carhart is an expert in the area of biomechanical engineering and injury mechanics. He will testify regarding how and when Mrs. August may have sustained injury to her right elbow during the incident on 6/10/02. C. 3. MAY BE CALLED AT TRIAL Stephen Brown, M.D. 1616 E. Maryland Avenue Phoenix, AZ 85016

Dr. Brown is an orthopedic surgeon and has been certified with the American Board of Orthopedic Surgeons since September 9, 1980. Dr. Brown has reviewed the medical records of Teresa August as well as the Plaintiff's responses to discovery and the parties' disclosure statements. He will testify regarding Plaintiff's injury to her elbow and will state that she has had an excellent outcome and return of function. M. EXHIBITS

PLAINTIFF: Defendants reserve all objections to Plaintiff's exhibits because Plaintiff did not provide copies of her exhibits to Defendants in preparation of this Order. 1. Teresa August's Arizona Heart Hospital Medical Records [00001 ­ 000013] Defendants object to [000002] as lacking foundation. 2. Teresa August's Maricopa Medical Center Medical Records [000014 ­ 000038] Teresa August's CIGNA Healthcare ­ Surgicenter Medical Records [000039 ­ 000051] - 27 Document 278 Filed 01/23/2007 Page 27 of 56

3.

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Defendants object to [000039-000048] as unrelated to Plaintiff's elbow injury, lacking foundation, as irrelevant and as containing hearsay. Defendants further object to [000051] as hearsay. 4. Teresa August's Charles M. Creasman, M.D. Medical Records [000052 ­ 000060] Teresa August's Beth A. Purdy, M.D. Medical Records [000061 ­ 000070] Teresa August's Canyon Surgery Center Medical Records [000071 ­ 000077] Teresa August's David England, D.O. Medical Records [000078 ­ 000082] Teresa August's Desert Hand Therapy Medical Records [000083 ­ 000115] Urgent Care Record (Cigna) [AUGUST 1263] Defendants object to Exhibit 9 as duplicative of Exhibit 3 and as unrelated to Plaintiff's elbow injury, lacking foundation, irrelevance and containing hearsay. 10. Teresa August's Arizona Heart Hospital Billing Statement [000116] Defendants object to Exhibit 10 as lacking foundation and as containing hearsay. 11. Teresa August's Maricopa Medical Center Billing Statement [000117 ­ 000119] Defendants object to Exhibit 11 as lacking foundation and as containing hearsay. 12. Teresa August's Med Pro-ER Physicians/Radiology Billing Statement [000120 ­ 000121] Defendants object to Exhibit 12 as lacking foundation and as containing hearsay.

5.

6.

7.

8.

9.

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13.

Teresa August's Charles M. Creasman, M.D. Billing Statement [000122 ­ 00124] Defendants object to Exhibit 13 as lacking foundation and as containing hearsay.

14.

Teresa August's Beth A. Purdy, M.D. Billing Statement [000125 ­ 00130] Defendants object to Exhibit 14 as lacking foundation and as containing hearsay.

15.

Teresa August's Canyon Surgery Center Billing Statement [000131 ­ 000133] Defendants object to Exhibit 15 as lacking foundation and as containing hearsay.

16.

Teresa August's David England, D.O. Billing Statement [000134] Defendants object to Exhibit 16 as lacking foundation and as containing hearsay.

17.

Teresa August's Healthsouth Billing Statements [000135 ­ 000136] Defendants object to Exhibit 17 as lacking foundation and as containing hearsay.

18.

Teresa August's Pointe CIGNA Pharmacy Billing Statement [000137 ­ 000139] Defendants object to Exhibit 18 as lacking foundation, irrelevance and as containing hearsay.

19.

Teresa August's Desert Hand Therapy Billing Statement [000140 ­ 000148] Defendants object to Exhibit 19 as lacking foundation and as containing hearsay.

20.

Teresa August's Valleywide Surgical Services Billing Statement [000149] Defendants object to Exhibit 20 as lacking foundation and as containing hearsay.

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21.

Teresa August's St. Lukes Medical Center Billing Statement [000150 ­ 000154] Defendants object to Exhibit 21 as lacking foundation and as containing hearsay.

22.

Teresa August's Steven S. Crohn, M.D. Billing Statement [000155] Defendants object to Exhibit 22 as irrelevant and containing hearsay.

23.

Teresa August's Target Receipt [000156] Defendants object to Exhibit 23 as lacking foundation and as containing hearsay.

24.

Teresa August's CIGNA Pharmacy Billing Statement [000157 000159] Defendants object to Exhibit 24 as lacking foundation regarding Plaintiff's prescription for Zoloft.

25.

Teresa August's CIGNA Medical Group Equivalent Value Statement (EVS) [000259 - 00267] Defendants object to Exhibit 25 as lacking foundation, irrelevance and containing hearsay.

26.

Medical Bill Summary Defendants object to Exhibit 26 as not disclosed, lacking foundation and as containing hearsay.

27.

Teresa August 08/26/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 27 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

28.

Mark August 08/19/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 28 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

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29.

Dakota August 06/24/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 29 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

30.

Pam Hickey 06/29/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 30 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

31.

Beth Purdy, M.D. 02/10/2005 Deposition Transcript and attached exhibits Defendants object to Exhibit 31 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

32.

Richard Seligson, M.D. 09/09/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 32 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

33.

Joseph Tomory 01/18/2005 Deposition Transcript and attached exhibits Defendants object to Exhibit 33 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

34.

Toby Dunn 12/08/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 34 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

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35.

R.W. Griffin 08/18/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 35 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

36.

Sam Hickey 12/09/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 36 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

37.

Jeffeory Hynes 02/11/2005 Deposition Transcript and attached exhibits Defendants object to Exhibit 37 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

38.

Jeffeory Hynes 02/28/2005 Deposition Transcript and attached exhibits Defendants object to Exhibit 38 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

39.

Nicholas Lynde 08/18/2004 Deposition Transcript and attached exhibits Defendants object to Exhibit 39 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

40.

Lyle Monson 01/05/2005 Deposition Transcript and attached exhibits Defendants object to Exhibit 40 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

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41.

June 2003 Preliminary Hearing Transcript and attached exhibits Defendants object to Exhibit 41 as Plaintiff's designation is overly broad. Plaintiff also failed to designate page and line numbers. As a result, Defendants reserve the right to make objections on the basis of relevance, hearsay, prejudice, foundation, cumulative and form.

42.

Transcript of tape recorded interview of Teresa August by Officer Lyle Monson [AUGUST 0057 - 0069] Defendants object to Exhibit 42 as irrelevant. This transcript is not the revised version and is thus inaccurate.

43.

Transcript of tape recorded interview of Sam Hickey [AUGUST 1445 ­ 1456] Transcript of tape recorded interview of Dakota August [AUGUST 0055 ­ 0058] PUHS Document, Outstanding Educator Award, 1984, signed by Bruce Babbitt [AUGUST 0912] Defendants object to Exhibit 45 as irrelevant, lacking foundation, containing hearsay, as unrelated to Plaintiff's claims and remote as the document is 22 years old.

44.

45.

46.

PUHS letter of care for Asian students [AUGUST 09156] Defendants object to Exhibit 46 as irrelevant, lacking foundation and containing hearsay, as unrelated to Plaintiff's claims and remote as the document is 21 years old.

47.

PUHS performance review [AUGUST 1060-62] Defendants object to Exhibit 47 as irrelevant, lacking foundation and containing hearsay, as unrelated to Plaintiff's claims and remote as the document is 35 years old.

48.

PUHS application for supervisory position [AUGUST 1096-99] Defendants object to Exhibit 48 as irrelevant, lacking foundation and containing hearsay, as unrelated to Plaintiff's claims and as remote.

49.

Michael Black, Esq. records [August-Black 00001-00145] Defendants object to Exhibit 49 as lacking foundation, as irrelevant, as containing hearsay and as prejudicial.

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50.

Letter from Pam Hickey [August-Black 00133 - 00116] Defendants object to Exhibit 50 as irrelevant and as containing hearsay.

51.

Letter dated August __, 2004 from Dan Treon to Sgt. Tomory [AUGUST 0258] Defendants object to Exhibit 51 as lacking foundation and as irrelevant. In addition, Defendants have filed a Motion in Limine regarding the PSB investigation.

52. 53.

Use of Force Policy [AUGUST 0152-0170] Wage Loss Documentation Defendants object to Exhibit 53 as the documentation was not produced. Accordingly, Defendants reserve the right to make further objections.

54.

CAD Documents from City of Phoenix [AUGUST 0188-0192] Defendants object to Exhibit 54 as the Affidavit of the Custodian of Records is missing.

55.

Sgt. Wycoff's report [AUGUST 0083] Defendants object to Exhibit 55 as the report is incomplete and missing page 2 [August 0084]. Accordingly, Defendants object to the partial report as listed in Exhibit 55.

56. 57.

Phoenix Fire Department EMT Report [AUGUST 0114] Mark August mobile phone records [AUGUST 1432-1444] Defendants object to Exhibit 57 as lacking foundation, irrelevance and containing hearsay.

58.

PUHS Employment Records [AUGUST 669-0738] Defendants object to Exhibit 51 as lacking foundation, irrelevance, containing hearsay and as remote.

59. 60.

Drawing number 1 of August house [AUGUST 2031] Drawing number 2 of August house [AUGUST 2030]

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61.

Photographs of interior of August house taken by police officers on June 10, 2002 [AUGUST 0012 - 0016] Photographs of Sam Hickey taken by Phoenix Police Officers on June 10, 2002 [AUGUST 0005 - 0011] Photographs taken of Dakota August by Phoenix Police Officers on June 10, 2002 [AUGUST 0002 - 0003] Photographs of Teresa August taken by Phoenix Police Officers on June 10, 2002 [AUGUST 0018 - 0026] Defendants object to [August 000021-000022] as cumulative and irrelevant.

62.

63.

64.

65.

Photographs taken of interior of August home by Defendants' Investigator [AUGUST 1715 - 1742] Stephen G. Brown, M.D.'s Expert Report dated July 28, 2004 (signed version ­ 4 pages) [AUGUST1709 ­ 1712] Defendants object to Exhibit 66 as containing hearsay.

66.

67.

Stephen G. Brown, M.D. Expert Report dated July 28, 2004 (unsigned version ­ 5 pages) Defendants object to Exhibit 67 as containing hearsay.

68.

Stephen G. Brown, M.D. List of Depositions, Arb. Hearings & Trials (5 pages) [AUGUST1709 ­ 1712] Defendants object to Exhibit 68 as containing hearsay and irrelevant.

69.

Stephen G. Brown, M.D. Fee Schedule (1 page) Defendants object to Exhibit 69 as containing hearsay and irrelevant.

70. 71. 72. 73.

Stephen G. Brown, M.D. Curriculum Vitae (3 pages) Jeffeory G. Hynes Expert Report dated July 29, 2004 (34 pages) Jeffeory G. Hynes Curriculum Vitae (13 pages) Michael Carhart, Ph.D. expert report dated August 2, 2004 (9 pages) [AUGUST1695 ­ 1703] - 35 Document 278

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74. 75.

Michael Carhart, Ph.D. Curriculum Vitae (3 pages) Michael Carhart, Ph.D. List of Deposition, Arbitration, and Trial Testimony (2 pages) Defendants object to Exhibit 75 as containing hearsay and irrelevant.

76.

Plaintiff's Second Supplement Disclosure Statement (Expert Witness Rebuttal) re: Beth A. Purdy, M.D. dated September 2, 2004 Defendants object to Exhibit 76 as containing hearsay, as irrelevant and lacking foundation.

77.

Beth A. Purdy, M.D. Expert Opinion Report dated September 2, 2004 (1 page) Defendants object to Exhibit 77 as containing hearsay, as irrelevant and lacking foundation.

78.

Beth A. Purdy, M.D. Curriculum Vitae (3 pages) Defendants object to Exhibit 78 as containing hearsay.

79.

Beth A. Purdy, M.D. Special Report Fees/Legal Fees (1 page) Defendants object to Exhibit 68 as irrelevant.

80.

Teresa Aug