Free Response to Motion - District Court of Arizona - Arizona

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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 RESPONSE TO PLAINTIFF'S MOTION IN LIMINE NO. 14 RE: TESTIMONY OF SAM HICKEY

Defendants respond in opposition to Plaintiff's Motion in Limine No. 14 Regarding Speculation by Sam Hickey About Whether Plaintiff Had Strength to Twist her Own Arm Out of Its Joint and request that it be denied for the reason that Sam Hickey should be allowed to testify as to the events that transpired during the altercation between he and the Plaintiff. Prior to the arrival of Police, a domestic dispute between Sam Hickey and Plaintiff resulted in a physical altercation in which Sam restrained Plaintiff's arms. Deposition of Sam Hickey 103:21-25. Plaintiff told the 9-1-1 operator that Sam "got hold of my hands" and "grabbed me." [Revised Transcript of 9-1-1 Call, June 10, 2002, p1 Bates No. 1445, p 7 Bates No. 1451]. Plaintiff also told police that Sam had twisted her arm. [Revised Tape Recording from Officer Lyle Monson, conducted on June 10, 2002, p

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12 Bates No. 2268]. These facts go to issues of causation and comparative liability and are relevant. FED. R. EVID. 401. It is true that Sam Hickey is not qualified to give expert opinion, Defendants do not expect him to offer such. Sam should not be precluded from testifying as to the factual circumstances surrounding his encounter with Plaintiff, including the twisting of her arm. He should be allowed to testify as to her strength, how much she struggled against him, and the manner in which he restrained her arms. These observations will be critical to the jury as they determine the ultimate cause of Plaintiff's injury. Sam Hickey doesn't know what cause Plaintiff's injury, but the facts of his interaction with Plaintiff and his firsthand observations during their struggle are critical to the issues in this case. Sam should be allowed to offer full and complete testimony of what transpired during his altercation with Plaintiff. For the reasons stated above, Defendants respectfully request that the Court deny Plaintiff's Motion in Limine No. 14. DATED this 5th 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 5th day of November, 2006, to: ALL PARTIES ON ELECTRONIC SERVICE LIST
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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
1729553.1

s/Peggy Sue Trakes

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