Free Supplement - 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 SUPPLEMENTAL BRIEF REGARDING DR. PURDY'S OPINIONS AS PLAINTIFF'S TREATING PHYSICIAN

Plaintiff Teresa August hereby submits her supplemental brief in support of admission of all of Dr. Purdy's opinions regarding her examination and treatment of

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Mrs. August's injuries. Plaintiff submits this brief as a supplement to the brief filed on January 9, 2007 regarding Dr. Purdy's opinions regarding the causation of Mrs.
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August's injuries.

Early this morning before trial resumed, Plaintiff e-mailed the

defense to confirm what Plaintiff thought was obvious, that Dr. Purdy's appropriate opinions were not just causal, but also will include the other treating physician opinions on subjects such as lack of susceptibility, residual effect of the injury, impairment status, prospective recovery, etc. Defendants advised Plaintiff they So now, out of an

disagreed about the proper scope of Dr. Purdy's testimony.

abundance of caution, Plaintiff submits this additional brief to comprehensively lay out for Defendants what has already been disclosed. I. Dr. Purdy is Permitted to Opine Regarding Mrs. August's Injury Simply by virtue of the fact that she is Mrs. August's treating physician, Dr.

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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 (1997) (emphasis added). See also Baker v. Taco Bell Corp., 163 F.R.D. 348, 349 (D.Colo. 1995) (treating physicians have opinion as to cause of injury based on examination of patient, not experts as defined by Rule 26(a)(2)(B)). Dr. Purdy based her opinions primarily on the medicine related to the

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mechanics of what causes the kind of medial dislocation suffered by Mrs. August's elbow. A part of that medical process included coming to an understanding about how Mrs. August's arm was moved during the arrest, information she obtained from
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Mrs. August during her examinations of Mrs. August and her review of the medical records. As demonstrated, infra, Defendants have full discovery of Dr. Purdy's

opinions regarding Mrs. August's injuries. Their attempts to limit the testimony at this late hour, only after they have withdrawn their own causation and medical prognosis experts, is a desperate attempt to block unfavorable, scientifically valid, and previously disclosed evidence which shows that Mrs. August's dislocation did not occur the way the officers claim. In addition to the opinion letter from Dr. Purdy (attached as Exhibit 1 to Plaintiff's previous Brief regarding Dr. Purdy's signed opinion), Plaintiff provided Defendants with a two-page opinion regarding the results of Dr. Purdy's September 2, 2004 examination of Mrs. August, and Defendants had a full opportunity to depose Dr. Purdy. (Exhibit 1, September 2, 2004 letter from Dr. Purdy to Daniel Treon

regarding the examination results and Exhibit 2, February 10, 2005 deposition of Beth Purdy, M.D.) The extent of Dr. Purdy's opinions regarding Mrs. August's diagnosis, treatment and prognosis is detailed, infra. II. Dr. Purdy's Opinions Have Been Disclosed to Defendants A. Dr. Purdy Extensively Described the Diagnosis and Treatment of Teresa August

When Dr. Purdy initially saw Mrs. August, she diagnosed the problem using xrays and a physical exam; Mrs. August and Dr. Purdy agreed upon corrective surgery with ligament reconstruction and stabilization instead of a total elbow replacement. (Exhibit 2, 18:11 ­ 22:13) Mrs. August's elbow had posterolateral rotatory instability because of the incompetence of the lateral collateral ligament complex; "[w]ithout the
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lateral collateral support, the forearm will turn or open relative to the humerus and that's the basic mechanism for how the initial dislocation happens is with an axial force, the rotation occurs, the ligament fails and the elbow goes out posteriorly." (Exhibit 2, 25:19 ­ 26:08) The only alternative to surgery for Mrs. August was to do nothing, but either surgical alternative would improve her elbow over doing nothing. (Exhibit 2, 28:06 ­ 22) During the surgery, Dr. Purdy removed the granulation tissue within the joint; granulation tissue is a response to healing, part of the body's attempt to heal itself, and in Mrs. August's elbow, large amount of granulation tissue accumulated and blocked the congruence of the joint. (Exhibit 2, 25:06 ­ 18, 26:09 ­ 19, 27:08 ­ 17) The granulation tissue prevented a simple reduction surgery from stabilizing Mrs. August's elbow. (Exhibit 2, 27:03 ­ 06) Mrs. August's elbow joint capsule was torn, but Mrs. August did not sustain any additional bony injuries. (Exhibit 2, 85:22 ­ 86:01) As part of the surgery, Dr. Purdy "reconstructed the lateral collateral ligament complex, also sometimes called the lateral ulnar collateral ligament. The medial side was almost certainly injured, but oftentimes with stabilizing the lateral side a person can have a very stable functional elbow without repair of the medial side in the absence of being an overhand thrower." (Exhibit 2, 85:03 ­ 11) Dr. Purdy also noted: The common extensor origin is almost always disrupted with this injury and that's documented by Dr. Creasman's first operative report. I would presume that there was also injury to the flexor pronator on the medial aspect of the elbow. But this wasn't actually visualized because the approaches were from lateral.... [B]ased on
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my knowledge of the anatomy and what had to go wrong for her elbow to go out there was almost certainly injury over there. (Exhibit 2. 85:03 ­ 21) The expected course of healing and treatment after ligament reconstruction surgery was: · eight weeks in a hinged elbow splint with physical therapy to work on range of motion and other issues; · some strengthening would develop after the eight weeks; · unlimited activities at about six months, although the pain and discomfort would continue; and · improvement would plateau in six months to a year. (Exhibit 2, 22:14 ­ 24:03) Mrs. August's elbow pain was caused by the swelling,

which was caused by the original injury and the surgeries. (Exhibit 2, 26:20 ­ 27:02)
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Dr. Purdy's treatment decision would not have been affected by the existence of Mrs. August's other joint replacements or dislocations. (Exhibit 2, 24:12 ­ 25:01) Dr. Purdy typically prescribes physical therapy and physical therapy is important, but lack of compliance with the physical therapy does not necessarily impact the patient's results, and some people who "don't attend physical therapy do

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better than ones who do." (Exhibit 2, 29:18 ­ 30:01) The effect of waiting to start physical therapy depends on how much the patient mobilizes her elbow, and the patient's own use of her elbow could potentially provide the same result as if she attended physical therapy. (Exhibit 2, 30:02 ­ 11) On August 6. 2002, Dr. Purdy saw Mrs. August and noted:
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· Mrs. August reported wearing her hinged elbow splint, · Mrs. August reported removing the splint to apply lotion, · the incision had healed nicely and sutures were removed, · a bit of swelling present in the elbow, and · Mrs. August was able to tolerate a 45 degree arc of motion.

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(Exhibit 2, 28:12 ­ 22). Dr. Purdy was disappointed by the condition of Mrs. August's elbow on August 6, 2002, because the x-rays revealed mild subluxation, the joint was slightly incongruent, i.e., the joint was open more on one side than the other at the ulna-humeral joint which is the flexion-extension part of the joint. (Exhibit 2, 31:01 ­ 22)

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Dr. Purdy saw Mrs. August again on August 20, 2002, and noted Mrs. August reported she was wearing the splint but not attending physical therapy. (Exhibit 2, 32:02 ­ 08) Dr. Purdy was pleased with Mrs. August's increase in mobility, and she noted a small amount of heterotopic ossification forming, bone that forms in the healing process in the capsule or surrounding muscle, it is common after sever elbow

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injuries or multiple surgeries or manipulations are performed, and is unique to the elbow and hip. (Exhibit 2, 32:09 ­ 33:03) Dr. Purdy emphasized therapy to Mrs.

August on August 20, 2002 because she wanted another health professional observing Mrs. August's recovery and to prevent serious problems from developing. Mrs. August was "making great progress" as of August 20, 2002. (Exhibit 2, 33:03 ­

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13)

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Dr. Purdy saw Mrs. August on September 10, 2002, and Mrs. August reported right shoulder pain, she was attending therapy, but she was poorly compliant regarding wearing her splint. (Exhibit 2, 33:21 ­ 34:02) The protocols for treatment are "somewhat dogmatic," and most people do not exactly follow directions. Some people who do not follow protocol do better than people who do. (Exhibit 2, 34:01 ­ 13) The protocol calls for the elbow splint to be worn for eight weeks, and Dr. Purdy prefers patients to wear the splint at all times, except when bathing; only 40 ­ 60% of patients wear their splint all the time, as prescribed. (Exhibit 2, 34:23 ­ 35:08) The purpose of the splint is to protect the ligament reconstruction as much as possible; without the splint, a significant load on the elbow could potentially case rupture or failure of the reconstruction and set back Mrs. August to her prereconstruction condition. (Exhibit 2, 34:13 ­ 22) At Mrs. August's September 10, 2002 examination, Dr. Purdy conducted a number of tests: · Mrs. August's right extension was -55; · Her right flexion was 115; · Her left extension was 0; · left flexion was 135; · her right forearm pronation was 75;

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· her right forearm supination was 40; · her left forearm pronation was 65;

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· her left supination was 80 · her right side grip strength was 20 pounds the first attempt and 20 pounds the second attempt; · her left side grip strength was 50 pounds for the first attempt and 45 pounds for the second attempt;

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· her right side pinch test measured 7 pounds, and the left side pinch test measured 12 pounds; · for the lateral test, Mrs. August's right side was 10 pounds and the left side was 15 pounds; and finally, · for the three jaw test, Mrs. August could squeeze 9 pounds on the right side and 14 pounds on the left side. (Exhibit 2, 35:09 ­ 37:24) Dr. Purdy examined Mrs. August again on October 15, 2002, and noted that Mrs. August was using ankle weights for strengthening. (Exhibit 2, 38:04 ­ 22) After

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the eight weeks of immobilization, strengthening and range of motion were goals of therapy. (Exhibit 2, 38:04 ­ 22) Mrs. August's use of ankle weights strapped to her wrist did not endanger her elbow, and was actually a "clever" way to obtain the desired "passive stretch to the elbow." (Exhibit 2, 38:18 ­ 22) Dr. Purdy would have expected Mrs. August to have pain from the injury, surgery and rehab. (Exhibit 2,

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38:23 ­ 39:03) On October 15, 2002, Dr. Purdy again tested Mrs. August; · Mrs. August's right extension was -30,

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· Her left extension was 0; · right flexion was 110; · left flexion was 135; · right pronation was 80; · her left pronation 65;

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· herright supination of 45; · her left supination of 80. (Exhibit 2, 39:04 ­ 19) These measurements are approximate, but the extension going from -55 to -30 was "fairly dramatic." (Exhibit 2, 39:19 ­ 23) As of October 15,

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2002, Mrs. August's strength was also improving, "approaching more equality side to side." (Exhibit 2, 41:06 ­ 07) The significant comparison is right side to left side, not from one date to the next, because the grip strength measuring devices and pinch meters are not frequently calibrated. (Exhibit 2, 39:22 ­ 40:05) On October 15, 2002, Dr. Purdy again tested Mrs. August:

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· her right hand grip strength measured 25 pounds the first attempt and 30 pounds on the second attempt; · her left hand grip strength measured 60 pounds, then 55 pounds; · her right side pinch strength, 9 pounds, left side, 10 pounds; · for the lateral test, Mrs. August's right side measured 11 pounds and the left side 13 pounds; and · for the three jaw test, Mrs. August's right side measured 11 pounds and the left side 13 pounds -9Document 244

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(Exhibit 2, 40:12 ­ 41:07) On December 10, 2002, Mrs. August saw Dr. Purdy regarding her bilateral carpal tunnel syndrome, they discussed the symptoms and condition, and Mrs. August chose to not pursue surgery at the time. (Exhibit 2, 43:11 ­ 45:01) On September 2, 2004, Dr. Purdy "examined [Mrs. August's] elbow for stability, range of motion, strength, and findings that would be consistent with arthrosis and maneuvers that would cause her pain." (Exhibit 2, 61:06 ­ 12) During the

examination, Mrs. August "reported fairly consistent pain in her elbow. She was using over-the-counter analgesics and consistently using a heating pad, and she perceived that she had the continued loss of motion and loss of strength." (Exhibit 2, 61:13 ­ 19) Dr. Purdy tested Mrs. August on September 2, 2004: a "range of motion from 35 to120 degrees of flexion, 80 degrees of pronation, and 65 degrees of supination. And range of motion of her writst was 40 degrees of flexion, 50 degrees extension, 15 degrees radial deviation, and 30 degrees ulnar deviation." (Exhibit 2, 61:20 ­ 62:03) Based on this evaluation, Mrs. August's range of motion and strength were static, and the "amount of crepitance and pain that [Dr. Purdy] could listen on her elbow was probably fairly static." (Exhibit 2, 62:04 ­ 13) Not only was Mrs. August's condition static, but she had lost some of the gains she made in her extension. (Exhibit 2, 62:24 ­ 63:01) Some of the loss can be explained by the fact that most people improve in therapy by two steps forward, one step back, two more steps forward, etc. (Exhibit 2, 63:02 ­ 06) When they "reach the point of equilibrium and they stop stretching, generally their degree of comfort
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improves but you oftentimes lose the last 15 to 20 degrees that you had gained." (Exhibit 2, 63:07 ­ 10) This could be true for Mrs. August, but it could also be the progressive loss of motion along with the progression of damage to her elbow. (Exhibit 2, 63:11 ­ 13) The September 2, 2004 report of Dr. Purdy's examination included the observation, Mrs. August "has noticeable crepitance with both flexion and extension and forearm rotation." (Exhibit 2, 64:02 ­ 07) "Crepitance" is "sort of listening with your hands." (Exhibit 2, 64:02 ­ 09) With a hand over Mrs. August's elbow while it is moving, "you feel the clickity-clack, crunch crunch, and the flexion/extension would be as she was obviously going from flexion/extension and form rotation you are feeling over the radius where it meets the humerus and as she rotates you get that same crunch, crunch, clickity-clack." (Exhibit 2, 64:02: - 14) "Incongruities in the cartridge [sic], sometimes overlying soft tissue, arthritis, [and] bone spurs" can cause the crepitance, and for Mrs. August, Dr. Purdy believes it is "related to the arthrosis present secondary to her original trauma." (Exhibit 2. 64:15 ­ 65:04) During the September 2, 2004 examination of Mrs. August, Dr. Purdy found the following: · Mrs. August had a right grip strength of 30 pounds and a left grip strength of 45 pounds. Since the previous measurements found her right grip strength to be approximately half of her left grip strength, this represented some improvement;

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and

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· the lateral pinch strength of 12 pounds on the right side and 14 pounds on the left side is not an improvement from Mrs. August's condition on October 15, 2002 - the strength of the right side continued to lag behind her strength on the left side. (Exhibit 1 and Exhibit 2, 65:05 ­ 66:04) Dr. Purdy explained other details from the

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September 2, 2004 letter: · In the x-rays from September 2, 2004, Dr. Purdy found no evidence of subluxation; compared with the fact that Dr. Purdy found some persistent instability in Mrs. August's first post-operative appointment, things appeared to equilibriate. (Exhibit 1 and Exhibit 2, 66:05 ­ 16)

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· By "arthrosis" in the September 2, 2004 report, Dr. Purdy is "describing is findings of arthritis, which is narrowing of the joint space, which would indicate thinning of the cartilage, peripheral osteophyte formation, which is basically the bone spurs that form on the periphery of the joint, and so arthrosis sort of would encompass those things." (Exhibit 2, 66:17 ­ 25)

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· The section of the September 2, 2004 report that says, "there is a mild amount of hererotopic ossification distal and medial to the medial epicondyle and to some degree within the cubital tunnel, as well as two area of abnormal

ossification with the area lateral to the lateral epicondyles," means, in lay terms, "with injuries around the elbow, tissues that weren't bone can turn into bone or

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bone can form in places that you wouldn't expect it. And so she had small

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areas of bony formation both on the medial or inner side of her elbow and on the outer side of the elbow." (Exhibit 2, 67:01 ­ 13) B. Dr. Purdy Extensively Described Teresa August's Prognosis

Dr. Purdy opined that Mrs. August will continue to suffer from permanent impairment that will worsen with post-traumatic arthritis. (Exhibit 3, September 2,

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2002 letter from Dr. Purdy regarding prognosis and causation) Mrs. August's right arm does not extend as far as her left arm (she will never have a "matched set," she has problems gripping with her right hand, and she holds her right arm across her body as she walks. (Exhibit 2, 24:03 ­ 06, 80:22 ­ 81:01, Exhibit 3) Mrs. August's range of motion improved with physical therapy, but it remains limited; Mrs. August

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has an impairment rating of 16%. (Exhibit 3) "Assuming her life expectancy is within the next 10 to 15 years I would almost anticipate her to have further problems and further degenerative changes and progress of the arthritis in her elbow." (Exhibit 2, 81:05 ­ 08) As a general "overview" opinion after examining Mrs. August on September 2,

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2004, Dr. Purdy concluded that Mrs. August has "permanent impairment... in light of the severity of her injury she had adjusted to it quite well but it would likely have longterm consequences." (Exhibit 2, 67:20 ­ 68:03) Dr. Purdy based her opinion

regarding permanent impairment on "the guides to the evaluation of permanent impairment published by the American Medical Association, 5th Edition, and it was based on her loss of motion, as well as the arthrosis involving the ulnohumeral, radiocarpal and proximal radioulnar joint arthrosis." (Exhibit 2, 68:04 ­ 11) Dr. Purdy

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also noted degenerative changes in Mrs. August's elbow and joint, caused by the injury and subsequent instability. (Exhibit 2, 69:13 ­ 22) Although joints can deteriorate with age, elbows are rarely affected by primary osteoarthritis or degenerative arthritis; it would be uncommon for an older woman to have degenerative change in her elbow. (Exhibit 2, 69:23 ­ 71:10) Degenerative change can cause pain in the elbow. (Exhibit 2, 70:13 ­ 15) Mrs. August reported "post-activity pain, pain with certain motions, [and] pain with activities that would push the extremes of her range of motion." (Exhibit 2, 70:16 ­ 22) The range of motion needed during normal everyday activities, according to a study, is 30 to 130 degrees of flexion. (Exhibit 2, 70:23 ­ 71:04) Therefore, in the ordinary course of the day and doing ordinary things like combing her hair or brushing her teeth, Mrs. August could be pushing the limits of her flexion, to the point of causing pain. (Exhibit 2, 71:05 ­ 71:10) III. Conclusion Dr. Purdy's testimony is appropriate first as a treating physician and then as an

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expert.

As a treating physician, Dr. Purdy clearly is allowed to testify about the

causation Teresa August's arm injury, including what did not cause it, i.e., anything Sam Hickey did to Teresa August. Dr. Purdy can explain the forces involved in causing a medial elbow dislocation and how these forces do not comport with how the officers claim they handled Mrs. August's arm. Plaintiffs should not be penalized

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because of their unnecessary compliance with Rule 26(a)(2)(C), nor because of Defendants' last-minute sleight of hand. For the aforestated reasons, Plaintiffs ask

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the 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 10th day of January, 2007.

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 10, 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/ Aly Shomar-Esparza

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