Free Objection - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' RESPONSE TO PLAINTIFF'S BRIEF REGARDING DR. PURDY'S CAUSATION OPINIONS

Defendants Griffin, Dunn, Lynde and Monson, through counsel, submit this Response to Plaintiff's Brief Regarding Dr. Purdy's Causation Opinions. Plaintiff failed to disclose Dr. Purdy as a causation witness and must be precluded from giving any causation opinions at trial. This Motion is supported by the following Memorandum of Points and Authorities, exhibits attached hereto and any oral argument the Court may hold in this matter.

MEMORANDUM OF POINTS AND AUTHORITIES
I.

FACTUAL BACKGROUND. After the Court entered an Order precluding Dr. Purdy from giving any

opinions that were not disclosed pursuant to the Court's Rule 16 Scheduling Order,
1731875.1

Case 2:03-cv-01892-ROS

Document 245

Filed 01/11/2007

Page 1 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiff filed the subject Brief. As anticipated, it appears that Plaintiff will be calling Dr. Purdy during her case in chief to give both "treating" and "causation" opinions. The following is a timeline of events related to expert disclosures in this matter:

The Court's Rule 16 Scheduling Order sets: (1) Plaintiff's expert disclosure deadline for July 2, 2004; (2) Defendants' expert disclosure deadline for August 2, 2004; and (3) Plaintiff's rebuttal expert disclosure deadline for September 2, 2004. The Order requires all witnesses with expert opinions to prepare a Rule 26(a)(2)(B) Report. Plaintiff lists Dr. Purdy as a "treating physician" in her Initial Disclosure Statement dated February 27, 2004, but discloses no Rule 26(a)(2)(B) Report or any opinions, including "causation" opinions, as required by the initial Case Management Order. Plaintiff failed to disclose an expert or any Rule 26(a)(2)(B) reports by the July 2, 2004 deadline. On August 2, 2004, Defendants disclosed three experts: (1) Commander Hynes, Police Procedures; (2) Dr. Brown, physician who disclosed permanent impairment rating opinions; and (3) Mike Carhart, Biomechanical Engineer, who disclosed causation opinions On September 2, 2004, Plaintiff disclosed Dr. Purdy as a "rebuttal" expert to "rebut" the expert opinions of Dr. Carhart and Dr. Brown, and attached a 1-page Rule 26(a)(2)(B) report. The Report contains two rebuttal opinions: one rebutting the opinions of Dr. Brown regarding permanent impairment ratings, and one rebutting the opinions of Dr. Carhart. Dr. Purdy's expert report states that she cannot make any causation opinions without additional information: "It can be stated to a reasonable degree of medical or scientific certainty that Mrs. August's alleged movements would not cause the dislocation in isolation without the force applied by the officer first. I will need to
1731875.1

2

Case 2:03-cv-01892-ROS

Document 245

Filed 01/11/2007

Page 2 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1731875.1

see Mrs. August's and Dakotah August's description of her movements when the officer was grabbing and twisting her arm, and any such description by Sam Hickey, if he observed such." The Report was never supplemented, nor at the time of her deposition had this information been provided to Dr. Purdy. In rebutting Dr. Brown and Dr. Carhart's expert opinions, and making a "non-opinion" about causation, Dr. Purdy relied on: (1) Plaintiff's medical records; (2) Dr. Brown's report; (3) Dr. Carhart's report; (4) pages 41-52 of Dakotah August's deposition; (5) the transcript of Mrs. August's tape recorded interview taken by Officer Monson; (6) "an explanation from Plaintiff's counsel generally about Officer Lynde's deposition testimony that he did not notice that Mrs. August favored her right arm during his pre-arrest contact with her or that it appeared injured;" and (7) Dr. Purdy has also been advised generally of the description of how Sam Hickey grabbed Theresa August's arms during the incident given at her deposition, but she will need to review Theresa August's deposition and Sam Hickey's deposition testimony when it is available in order to present any final opinion."
II.

LEGAL ARGUMENTS.
A.

Dr. Purdy Cannot Testify as Causation Expert.
1.

Dr. Purdy Was Not Timely Disclosed as Causation Expert.

Plaintiff argues that she "should not be penalized because of their unnecessary compliance with Rule 26(a)(2)(C)." Yet, the Court's Rule 16 Scheduling Order and the Fed. R. Civ. P. required Plaintiff to disclose all expert causation opinions by July 2, 2004 in a Rule 26(a)(2)(B) Report. Plaintiff failed to comply with this deadline and now attempts to "back door" improperly disclosed causation experts. Plaintiff did not comply with the Rule 16 Scheduling Order requirements that all witnesses with opinions must prepare a Rule 26(a)(2)(B) Report. This provision in

3

Case 2:03-cv-01892-ROS

Document 245

Filed 01/11/2007

Page 3 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

the Order is clear and is designed to prevent surprise. Dr. Purdy's Rule 26(a)(2)(B) Report does not include any causation opinions. It is clearly reactionary to Defendants' expert reports and intended as rebuttal, not to be used as an initial report of her opinions regarding care and causation. Moreover, Dr. Purdy's Report specifically reserves

judgment on giving any causation opinions until she received additional information! In addition, Dr. Purdy testified during her deposition that she does not give permanent impairment ratings for a typical treating patient. In this case, however, Dr. Purdy did give a permanent impairment opinion to help "benefit [Mrs. August] in the legal arena that she was in" and clearly only in response to the Defendants' expert's opinions already disclosed. Dr. Purdy's rebuttal expert report dated September 2, 2004, to refute the impairment rating given by Dr. Brown, was not disclosed as an initial expert opinion by the expert disclosure deadline as outlined above. Accordingly, this opinion must be precluded in Plaintiff's case in chief.
2.

Dr. Purdy Lacks Foundation for Opinions.

Under Fed. R. Evid. 702, there is a preliminary burden of establishing that medical causation testimony is based upon reliable information and is not a "net opinion." See generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). "To qualify, the expert must testify that the foundation of his opinion comes from a source reasonably relied upon by experts in his field. Absent this demonstration, the testimony lacks a reliable foundation on the why's and wherefore's necessary to qualify for consideration." Miller v. U.S., 422 F.Supp.2d 441, 444 (D.De. 2006). In Miller, the plaintiff failed to provide any medical evidence establishing that a physician could base a causation opinion almost entirely on information provided by the patient, the situation we have with Dr. Purdy's opinions. Id. "Moreover, Dr. Katz's medical report fails to provide information about the reliability of patient history in arriving at medical conclusions. Without more, Dr. Katz's opinion that plaintiff's neck, back or other pain was accident1731875.1

4

Case 2:03-cv-01892-ROS

Document 245

Filed 01/11/2007

Page 4 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

related because plaintiff said so is not a medical opinion at all; instead any lay person could arguably come to the same conclusion." Id. at 445. The holding in Miller is applicable to this case, as Dr. Purdy is unable to establish the requisite foundation for rendering causation opinions in this case. As outlined above, Dr. Purdy received extremely limited information before she made opinions in this case. For example, Dr. Purdy has never been provided with the Defendants' depositions, the police report, Plaintiff's deposition, a complete copy of Marcus Dakotah's deposition or Sam Hickey's deposition. As a result of the lack of information provided to her, before rendering opinions in this case, Dr. Purdy specifically noted in her "rebuttal" expert report that she still needed to see "Mrs. August's and Dakotah August's description of her movements when the officer was grabbing and twisting her arm, and any such description by Sam Hickey, if he observed such." Moreover, Dr. Purdy admitted that she did not have all of the information in this case: Question (Ms. Holsman): You stated that the officers caused Teresa August's injury, correct? Once again that's my completely nonlegal opinion based on what I have been provided with. And like I said, I don't have any reason to think otherwise. And do you agree that you have not been provided all of the information that has been developed through the course of this case, including depositions of officers, the police report, the fire department report at the scene, pictures, additional transcripts taken at the scene? Obviously you would be in a better position to judge what I haven't seen.

Answer (Dr. Purdy): 17 18 19 20 21 22 23 24 25 26
1731875.1

Question:

Answer:

5

Case 2:03-cv-01892-ROS

Document 245

Filed 01/11/2007

Page 5 of 8

1 2 3 4 5 6 7 8

Question:

But we can conclude that you have not seen everything developed during the discovery process of this case and that you have come to your conclusion based on the limited information that plaintiff's counsel has provided to you? Correct.1

Answer:

Thus, Dr. Purdy's causation opinions were not disclosed by either the initial expert disclosure or in her September 2, 2004 rebuttal expert report.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1731875.1
1

Moreover, when Dr. Purdy was asked questions during her deposition about her causation opinions she testified: Question (Ms. Holsman): Did Mrs. August describe and you kind of answered this but I am going to ask you again, did she describe to you how she struggled with the officers? Answer (Dr. Purdy): Like I said, we didn't specifically talk about whose limbs were where. **** Question: But you have rendered opinions about causation and how the dislocation occurred, so my question to you then is if Mrs. August explained to you then, is if Mrs. August had explained to you how she had resisted or struggled with the officers, would that have affected your opinion on how her injury was potentially caused? I still have the knowledge that a struggle occurred, force was applied, and then I have the knowledge of the ultimate injury that occurred. In terms of the judgments in between, I don't think I am necessarily in a position

Answer:

See transcript of Dr. Purdy deposition, pages 109-110, attached hereto as Exhibit 1.

6

Case 2:03-cv-01892-ROS

Document 245

Filed 01/11/2007

Page 6 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
1731875.1
2

to make those.2 Indeed, neither in her 26(a)(2)(b) report, nor anywhere in her deposition does Dr. Purdy ever reference the "arm bar hold" or claim to have any idea what it is, or how it was used or applied in this case. To the extent that Dr. Purdy has since her deposition been "educated" regarding the arm bar hold or provided additional depositions or information not previously relied upon in her report, such reliance and supplemental information would be not properly disclosed and improper to be used at trial. As outlined, Dr. Purdy does not have the foundation to give expert opinions on the cause of Plaintiff's injury. Put simply, she does not have an adequate amount of information to make opinions based on a reasonable degree of medical certainty. It cannot even be said that she has all of "one side" of the story since she has not even been provided with Plaintiff's deposition, and she certainly has not been provided with Defendants' side of the story. This is not a case where Plaintiff can say Dr. Purdy's lack of foundation and basis for her alleged causation opinion goes to the weight of the opinion, not its admissibility. To the contrary, as the gatekeeper, this court must first seek to determine whether the expert witness has the underlying basis for expressing the opinions and, if not, the opinions are of no use to the jury. The paucity of information provided to this witness renders her attempt at formulating an opinion on causation meaningless and not in any way of any assistance to the jury in understanding the issues In sum, Dr. Purdy's "opinions" regarding causation should be disallowed as neither properly disclosed or developed with proper foundation. In the alternative, the Defendants request the Court hold an evidentiary hearing to determine whether Plaintiff is

See transcript of Dr. Purdy deposition, pages 94-97, attached hereto as Exhibit 2.

7

Case 2:03-cv-01892-ROS

Document 245

Filed 01/11/2007

Page 7 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

qualified under Rule 26(a)(2)(B) to give opinions in this case based on lack of foundation. III. CONCLUSION. Based on the foregoing, Defendants respectfully request this Court prohibit Dr. Purdy from giving causation expert opinions at trial. DATED this 11th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By s/ Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Griffin, Dunn, Lynde and Monson

Electronically filed and served this 11th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003 By: s/Peggy Sue Trakes

1731875.1

8

Case 2:03-cv-01892-ROS

Document 245

Filed 01/11/2007

Page 8 of 8