Free Response to Motion - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. 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. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION IN LIMINE REGARDING ORDER OF PROTECTION

Plaintiff Teresa August responds to Defendants' Motion in Limine re Order of
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Protection.
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Defendants' persistence in introducing a fourteen year-old petition for an Order

of Protection shows 1) that they will stop at nothing to drag Mrs. August through the mud on completely collateral matters, and 2) they misapprehend the scope of Ms. Hickey's testimony about her relationship with Mrs. August and its purpose in the trial. As shown below, no door was opened and this evidence should remain excluded.

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Ms. Hickey's testimony about her relationship with Mrs. August was not offered as any
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comment on the quality of such; rather, it was offered simply as foundation to her testimony about the effect the incident has had on Mrs. August's emotional well-being (as relates to Mrs. August's emotional distress damages claim), and to establish that before this incident, and since it, Ms. Hickey was in a position to observe how Mrs. August's right arm worked, and to compare how it does not work very well now. Before Ms. Hickey testified on these subjects, Defendants challenged Ms. Hickey's testimony on disclosure grounds, and the undersigned advised the court that Plaintiff offered Ms. Hickey's testimony about her preincident contact with Mrs. August for this and only this reason. Plaintiff did not elicit

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testimony from Ms. Hickey about the quality of the relationship (and Plaintiff believes that Ms.
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Hickey did not offer any such testimony), or any suggestion that during such Mrs. August always conducted herself in a certain angelic manner. Nor did Ms. Hickey ever suggest as much. Defendants' intent in introducing this evidence at this juncture is suspect, also. They appear to want to offer it in cross-examination of Mrs. August, but never sought to impeach Ms. Hickey with it when they had the chance. If Ms. Hickey did, as Defendants allege, suggest some quality or strength of relationship (which she did not), then the time to impeach her with her own petition for an Order of Protection (which petition was denied, in all events),

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was with Ms. Hickey on the stand. Defendants seem to want to impeach Mrs. August with a
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third party's un-sustained allegation against her from fourteen years ago. This would be far afield of relevance, to say the least. Ms. Hickey's testimony was as neutral as possible, and opened no door, particularly not to evidence inadmissible evidence under Rule 404(b). Plaintiff again submits that the evidence should be excluded.

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DATED this 16th day of January, 2007.
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TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on January 16, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

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Kathleen Wieneke:
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Jennifer L. Holsman: Randall H. Warner:

By:

s/ Aly Shomar-Esparza

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