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 BRIEF REGARDING DR. PURDY'S CAUSATION OPINIONS

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

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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
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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. I. Dr. Purdy is Qualified to Opine on the Cause of Mrs. August's Injury 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 (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

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experts as defined by Rule 26(a)(2)(B)). Dr. Purdy based her opinions primarily on the medicine related to the 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

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records1.

As demonstrated, infra, Defendants have full discovery of Dr. Purdy's

opinions regarding causation of Mrs. August's injuries. Their attempts to limit the testimony at this late hour, only after they have withdrawn their own causation expert, is an unfortunate attempt to block crucial evidence which shows that Mrs. August's dislocation did not occur the way the officers claim. II. Dr. Purdy's Opinions on Causation Have Been Disclosed to Defendants A. Dr. Purdy Extensively Described the Cause and Forces Related to Mrs. August's Injury

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, 73:23 ­ 74:03) 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

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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:

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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
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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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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. 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) When a ligament stretches: Oftentimes what happens is the ligament will start to fail with the collagen fibers actually failing side to side and the ligament lengthens upon itself and then it either will rip mid-substance or avulse from one end or the other where it attaches to bone. But usually there is some combination of both of those that happen. (Exhibit 2, 88:01 ­ 08) But an avulsion, like what happened to Mrs. August, is: similar to when you are pulling weeds. You pull the weed, you get a clump of dirt with it. You pull the ligament, you get a clump of bone that comes off with it. (Exhibit 2, 89:01 ­ 06)
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The determination of whether someone sustains a ligament tear or an avulsion is probably determined by the: ultimate yield strength of the ligament itself versus the ultimate yield strength of the bone, which was weaker. So in an osteoporotic person you would expect that the ligament would actually be stronger and it would avulse. In a 17-year-old football player you would probably expect the ligament to fail as opposed to the bone, assuming skeletal maturity. (Exhibit 2, 89:13 ­ 21) Mrs. August's injury would not have occurred while her arms were outstretched in a "T", with pressure on the back of the elbow pushing forward and pulling back on the wrist; Dr. Purdy explained: 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) //
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B.

Sam HIckey Did Not Cause or Contribute to Mrs. August's Injuries

In her September 2, 2004, single-page opinion letter analyzing the causation of Mrs. August's injury, Dr. Purdy opined that Sam Hickey's grabbing Teresa August's arm was not a contributing factor to the dislocation that occurred when the officers grabbed and twisted Mrs. August's right arm. (Exhibit 1) The event was too remote

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in time, too minimal to have contributed to the dislocation and the deformity of an elbow dislocation would have been grossly obvious to the officers when they arrived. (Exhibit 1, see also Exhibit 2, 86:24 ­ 87:25) Plaintiff's counsel described Officer Lynde's testimony to Dr. Purdy, in which Officer Lynde stated he did not notice Mrs. August favoring her right arm during his

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pre-arrest contact with Mrs. August. Dr. Purdy perceived this testimony as additional evidence that the injury probably occurred during the officer's restraint of Mrs. August as Dr. Purdy had concluded from the other evidence she had already considered. (Exhibit 2, 55:10 ­ 56:22) In general, information from Plaintiff's counsel regarding Sam Hickey, and any other information from Plaintiff's counsel, had only a small

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effect on Dr. Purdy's opinion. (Exhibit 2, 56:23 ­ 57:12) Dr. Purdy's opinion is largely derived from her "original contact with Teresa, her mechanism of injury and the trauma that she had, and [Dr. Purdy's] knowledge of how these injuries occur as opposed to who said what." Dr. Purdy also received information from Dr. Creasman; the particular names and descriptions of motions did not influence Dr. Purdy's

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opinion. (Exhibit 2, 57:12 ­ 58:19) // //
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C.

The Officers Caused Mrs. August's Injuries

First, at all times mrs. August describes her injury to Dr. Purdy in the context of treatment. Mrs. August tells Dr. Purdy that it is the officers who are exerting force on her elbow. Dr. Purdy opines that this force is an axial compression force to the elbow as it flexed simultaneously with a valgus load and supination force. (Exhibit 1) Mrs.

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August's description of the officer applying force to her elbow with his left hand to the back part of the elbow joint while simultaneously grabbing onto her wrist and twisting the arm by the wrist backwards and toward the back of her body is consistent with how an elbow dislocation suffered by Mrs. August would occur. (Exhibit 1) Dr. Purdy opines:

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· "The officer's stabilization of the upper arm with the simultaneous force and torquing to the lower arm/wrist produced the significant dislocation observed." (Exhibit 1) · "To a reasonable degree of medical certainty, Mrs. August's alleged movements would not cause the dislocation in isolation without the force

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applied by the officer first." (Exhibit 1) · "Varus stability of the elbow joint is largely contributed to by the bony anatomy. A simple varus force, unless to an incredible extreme, is not going to cause specific injury. The elbow will fail with some kind of a rotational force." (Exhibit 2, 72:15 ­ 19)

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· "You apply enough of an axial load to your elbow through your forearm, there is going to be a rotational force just of the very ­ we are never going to hit it just

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exactly right on. So the lateral collateral ligament keeps the forearm where it's supposed to be relative to the elbow in a rotational sense." (Exhibit 2, 72:19 ­ 72:25) · "My understanding based on the record and based on what Teresa would have told me was that in the process of twisting her arm to restrain her arms behind

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her back the injury occurred. Being more precise than that, I don't know that I can be." (Exhibit 2, 96:25 ­ 97:04) And when asked whether Mrs. August could have caused the severe dislocation of her elbow to herself, Dr. Purdy stated: If she were running down the sidewalk, tripped and forcefully fell out onto her elbow, she potentially could haves sustained that. If she fell from a ladder breaking her fall with her outstretched arm, she potentially could have sustained it. From a standing position without any other force, I don't see how she could have. (Exhibit 2, 102:12 ­ 22. 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 the skinny kid 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

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

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Plaintiffs ask 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 9th 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 9, 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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