Free Brief (Non Appeal) - 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 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 REPLY IN SUPPORT OF HER BRIEF REGARDING DR. PURDY'S CAUSATION OPINIONS

Plaintiff Teresa August hereby replies in support of her brief in support of admission of all of Dr. Purdy's opinions regarding the causation of Mrs. August's

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injuries. As an initial matter, Defendants' response appears to suggest that the Court already has precluded Dr. Purdy's causation opinions and that the Plaintiff's brief
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represents some kind of "hail Mary pass" to save already-excluded evidence. Plaintiff understands the moment to be the exact opposite of how Defendants are attempting to cast it: Dr. Purdy's usual treating physician opinions ­ which by the Court's Rule 16 Scheduling Memorandum and the relevant Ninth Circuit cases relating to the scope of a treating physician's testimony ­ are admissible, but that the Court wanted a memorandum to clarify exactly what those opinions are. Defendants' primary argument first attempts to characterize Dr. Purdy as an expert witness as contemplated in the Court's Rule 16 Scheduling Order. Presumably, however, had the Court intended the Rule 16 Scheduling Order to include treating physicians with the expert witnesses, it would have stated as much; to the contrary, the Order makes it clear that the expert witness disclosure requirements did not apply to Dr. Purdy in her capacity as treating physician, because she was not retained or employed specifically to provide expert testimony in the case and she is certainly not Mrs. August's agent or employee whose duties regularly involve giving expert testimony (unlike Defendants' specific retention of Dr. Carhart, a professional witness). Plaintiff has an absolute right under Rule 26(a)(1)(A) to call her treating physician, Dr. Purdy to testify regarding the "cause of the medical condition, the diagnosis, the prognosis and the extent of disability caused by the condition, if any," exactly as contemplated by Rule 26(a)(1)(A), Federal Rules of Civil Procedure. Plaintiff long ago disclosed Dr. Purdy's opinions regarding the cause of Mrs. August's dislocated elbow in the form of two letters/reports, both authored on September 2, 2004, and Dr. Purdy's February 10, 2005 deposition testimony.
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I.

Treating Physician Dr. Purdy May Opine on the Cause of Mrs. August's Injury Defendants' claim that Dr. Purdy was not disclosed as a causation expert

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completely ignores that Dr. Purdy was Mrs. August's treating physician, and as Mrs. August's treating physician, she is entitled to opine on the cause of Mrs. August's condition. Simply by virtue of the fact that she is Mrs. August's treating physician, Dr. Purdy can attest to all aspects of her examination, diagnosis and treatment: It is common place for a treating physician during, and as part of, the course of treatment of a patient to consider things such as the cause of the medical condition, the diagnosis, the prognosis and the extent of disability caused by the condition, if any. Opinions such as these are a part of the ordinary care of the patient and do not subject the treating physician to the extensive reporting requirements of Fed.R.Civ.P. 26(a)(2)(B). Piper v. Harnischfeger Corp., 170 F.R.D. 173, 175 (D. Nev. 1997) (emphasis added). See also Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D.Colo. 1995) (treating

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physicians have opinion as to cause of injury based on examination of patient, not experts as defined by Rule 26(a)(2)(B)). The Rule 16 scheduling order is irrelevant, in as much as Dr. Purdy was timely disclosed as Mrs. August's treating physician. II. Dr. Purdy's Opinion Has a Proper Foundation Dr. Purdy based her opinions primarily on the medical knowledge related to the

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mechanics that cause the type of medial dislocation suffered by Mrs. August's elbow. A part of Dr. Purdy's medical analysis included coming to an understanding about how Mrs. August's arm was moved during the arrest, information she obtained from Mrs. August during her examinations of Mrs. August, and her review of the medical

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records1 as part of her ordinary examination and treatment of a patient with an unstable dislocated elbow. But this is not good enough for Defendants. Since when does an orthopedic surgeon, with a specialization on the very body part injured by the defendants' alleged conduct, lack the foundation to explain how the injury occurred2?! Defendants'

attempt to neutralize Dr. Purdy reflects one thing and one thing only: Defendants made a tactical mistake by hiring Dr. Carhart to opine that forces other than those exerted by the officers on Mrs. August's arm caused the elbow dislocation (to wit, Sam Hickey's grabbing her arm and/or Teresa August's struggling). Defendants had to withdraw that opinion because 1) Dr. Carhart clearly did not know anything about the forces involved in elbow injuries and his inferior testimony would have tainted the credibility of the Defendants, and 2) Dr. Purdy explains that Sam Hichely's contact with Mrs. August did not have any effect on her elbow, and Mrs. August's alleged struggling could not have caused the injury. Defendants clearly are trying to preclude Plaintiff's relevant and allowable treating physician's testimony to protect themselves from their own tactical error. Dr. Purdy bases her opinion on what happened to Mrs. August: what injury did occur, how and why the ligaments tore, what forces it takes to sustain that kind of injury, and how it occurs from a single sequence of events. (Exhibit 2, February 10,

She also obtained information as a result of Defendants use of Dr. Carhart and the process Plaintiff engaged in to submit Dr. Purdy's rebuttal report. These included the reports of Stephen Brown, M.D. and Michael Carhart, Ph.D., part of Dakotah August's deposition and the transcript of the recorded conversation that included Defendant Nicholas Lynde and Mrs. August, among others. (Exhibit 1, September 2, 2004 signed opinion of Beth Purdy, M.D., and Exhibit 2, February 10, 2005 deposition of Beth Purdy, M.D., 52:09 ­ 25)

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2005 deposition of Beth Purdy, M.D., 73:23 ­ 74:03, attached to Plaintiff's brief) Similar to what happened here -- with the officers claims that Sam did it or that Mrs. August did it -- the descriptions of the events that injured people sometimes provide are an "absolutely impossible description of what happened," and "so the description of the event oftentimes is much less important than [an] understanding of the pathology of what happened." (Exhibit 2, 74:06 ­ 15) Conversely, Dr. Purdy opines that Mrs. August's description of the events is precisely consistent with how the dislocation occurred: This describes the mechanism that essentially every elbow goes through to achieve a posterior dislocation, whether the forearm ends up medial or lateral or straight posterior to the humerus. And the failure starts on the lateral side and then depending on the degree of injury will progress to circumferential disruption of the supporting structures of the elbow. Down here on the bottom which is Figure 29-5 it takes you from the perfect situation where the elbow was nicely reduced to the point where with a rotational force supination and valgus as opposed to varus, the forearm continuity with the huumerus fails by failure of the lateral side. As that happens the forearm can rotate independent of the humerus, and then as the ­ as further disruption occurs and it comes around medially, then the entire elbow gets to this point where the forearm is completely posterior to the humerus at the elbow articulation.... [The officers would have had to cause a] load, an axial load, which is longitudinal on the axis, there would be a valgus stress, which `valgus' means you take the midline and if you kind of make an `L', you make a valgus, as opposed to varus which goes towards the midline.

Dr. Purdy, in addition to focusing her own practice on the arm extremity, is a member of an exclusive elbow study and research group at the Mayo Clinic in Rochester, Minnesota, which includes all of the top elbow surgeons from around the world.

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As the valgus stress and the axial load, the forearm should be supinated and that causes the force to go out. So, you know, in the combination ­ obviously the report is that in the combination of the attempt to handcuff her from behind or restrain her from behind it wouldn't be unreasonable for the sequence of forces necessary to dislocate her elbow to have occurred. (Exhibit 2, 75:19 ­ 77:02) Mrs. August's injury would have occurred as a result of the forces placed on her elbow: Just with the combination of those two forces occurring simultaneously there is a rotation that occurs, and the rotation that occurs then causes it to go out the back with the combination of the two things that you described... [If a person landed with their hands straight in front of them on the ground, m]ore than likely in that case there would potentially be an associated fracture. The most common way to sustain it is the fall on the outstretched hand or the catch of the backward fall. (Exhibit 2, 77:14 ­ 25) Dr. Purdy opines that if someone was pulling back on the wrist and pushing forward on the elbow (like Mrs. August described), "depending on the force involved," the result could be the same kind of dislocation sustained by Mrs. August. (Exhibit 2, 78:01 ­ 07) The kind of dislocation sustained by Mrs. August results from a combination of forces, and any mechanism that causes the final common pathway of the combination of the forces could cause the injury. (Exhibit 2, 78:13 ­ 23) It is clear that Dr. Purdy's opinion is not a "net opinion," the term that the New Jersey courts use to describe an expert opinion lacking a factual basis, that is, a speculative opinion. See Magistrini v. One Hour Martinizing Dry Cleaning, 180

F.Supp.2d 584, 612 (D. N.J. 2002) (quoting Dawson v. Bunker Hill Plaza Associates, 637 A.2d 847, 853-54 (N.J. Super. 1996)).
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A closer examination of Miller v. U.S., 422 F.Supp.2d 441 (D.De. 2006) belies Defendants' application of its holding in this matter. In Miller, Plaintiff claimed that a bus accident caused his injuries. Miller at 442. Miller's treating surgeon opined that the accident caused plaintiff's injuries, and he based his conclusion solely on the fact that plaintiff said the accident caused the injuries. Id. at 443. The surgeon admitted that he never examined or considered the plaintiff's extensive history of back and neck problems and complaints, and all the previous injuries noted in plaintiff's various medical and social security records. Id. at 443-44. The court expressly rejected plaintiff's claim that he was feeling well at the time of the bus accident, and, on that basis, rejected the medical opinion regarding causation because it rejected the underlying factual foundation: "Where a medical expert's opinion depends primarily upon the credibility of the claimants subjective complaints... and the fact finder determines that those subjective complaints are not credible, the fact finder may reject the medical expert's conclusions." Id. at 444, (quoting Clements v. Diamond State Port Corp., 831 A.2d 870 (De. 2003). As Dr. Purdy testified, she primarily relied upon her examination of Mrs. August and Mrs. August's x-ray. Furthermore, a fact finder has not determined that Mrs. August's version of events is not credible, and at this point, this appears to be the jury's job. The second issue raised by Miller was whether the facts used as the basis for the surgeon's opinion were "customarily relied upon by physicians in arriving at causation opinions." Miller at 444. The court expressly found that the surgeon never provided this foundation. Id.
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Although Defendants did not ask Dr. Purdy whether the factual basis for her opinions are of the type "customarily relied upon by physicians in arriving at causation opinions," in this case it is clear that they are because she testified that she relied primarily on her examination are the x-rays. Dr. Purdy's opinions are based on her training, experience and specialized expertise regarding the elbow, and she is wellqualified to opine. III. Conclusion Defendants just do not like the fact that Dr. Purdy's opinions were all timely disclosed, and that those opinions so resoundingly defeated their own expert's fantasies about how an elbow works that they had to withdraw their own expert's

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opinions. Also, if Defendants truly had these objections about Dr. Purdy's opinions then they should have raised them long ago ­ not five days before trial started, which fact alone demonstrates that the motion is based on an attempt to gain unfair advantage instead of just meeting this evidence square on. The fact remains that Defendants have long had all of Dr. Purdy's well-founded opinions. Plaintiffs asks the

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Court to allow Dr. Purdy to give the jury a complete explanation of how Mrs. August's elbow was forced out of its socket. DATED this 12th day of January, 2007.

TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on January 12, 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: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:

s/ Laura L. Quesada

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