Free Response to Motion - 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 MOTION IN LIMINE NO. 16 RE: EXCLUSION OF TESTIMONY BY CAPTAIN CHARLES LEE

Defendants Griffin, Dunn, Lynde and Monson, through counsel, submit this Response to Plaintiff's Motion in Limine No. 16 Regarding Exclusion of Testimony by Captain Charles Lee. Plaintiff's Motion in Limine must be denied because: (1) Captain Lee is an EMT and qualified to render his assessment of Plaintiff and her symptoms at the scene; and (2) Captain Lee's testimony can be limited to his opinion that while the Fire Department were conducting their evaluation, Plaintiff was more concerned with other issues at the scene than her medical care. As the Court is aware, Plaintiff did not depose Captain Lee during the discovery period. At the pretrial conference on December 15, 2006, Plaintiff requested that he be given an opportunity to interview Captain Lee regarding his potential testimony. Defense counsel scheduled this interview, which was held on December 28,
1729523.1

Case 2:03-cv-01892-ROS

Document 227

Filed 01/05/2007

Page 1 of 4

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

2006. During the telephone conference, neither Captain Lee nor defense counsel was advised that Plaintiff was tape-recording the interview. On January 2, 2007, defense counsel asked Plaintiff if the December 28, 2006, interview had been recorded and requested a copy of the tape or transcript if it had been. Plaintiff did not respond to Defendants' request. Instead, on January 4, 2007, Plaintiff filed an untimely Motion in Limine, and attached and disclosed for the first time the tape recorded interview of Captain Lee. Plaintiff's Motion seeks to exclude Captain Lee from testifying at trial because he "will invite a full exploration of the arrest of Mark August, which the Court has already excluded from evidence. Moreover, the evidence is unnecessary and cumulative because it relates only to Teresa August's expression of pain at the scene, on which the officers likely will testify anyway." During the pretrial hearing, the Court stated the following regarding Defendants' Motion in Limine regarding Mark August's arrest: Motion in Limine regarding Mark August. Now, we've talked about this. This is what is admissible. Anything that may constitute an admission on behalf of the defendants. So if they said something, he heard something, they did something that would constitute an admission, that would be admissible. But the actual conduct, the actual activity of arresting him, all of that is not admissible. Now, you mentioned something, Mr. Treon, about his observations of Ms. August. And if those observations are relevant to her injury and to damages, he can testify to that. But that's the extent. And those are the parameters.1

1

See transcript of pretrial hearing, pages 42-43, attached hereto as Exhibit 1.
2

1729523.1

Case 2:03-cv-01892-ROS

Document 227

Filed 01/05/2007

Page 2 of 4

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
1729523.1

As outlined, despite Plaintiff's assertions, the Court has not limited the parties to any testimony that Mark August arrived at the scene. Regardless, defense counsel has advised Captain Lee that he may not testify about whether Mark August was arrested at the scene, the only limitation given by the Court on December 15, 2006. Thus, Plaintiff's assertion that any testimony regarding Mark August's arrival at the scene would "invite a collateral discussion about Mark August's arrest" is simply false. Captain Lee performed a medial assessment of the Plaintiff at the scene. This included taking and recording Plaintiff's vital signs on the EMS Report.2 As part of his medical assessment. Captain Lee is required to rate the patient's pain on a scale from 1 to 10. Captain Lee marked "3" for Plaintiff's pain on the EMS Report. Id. This pain rating determination is done with every patient. Captain Lee's proposed testimony will include what he did at the scene, including his medical assessment, and what he observed. He is a fact witness. He is the only witness from the Fire Department of the four man crew that responded to the scene that Defendants will call to testify at trial. Plaintiff's assertion that Captain Lee's

testimony would be "cumulative" is simply unsupportable. Based on the foregoing, Plaintiff's Motion in Limine No. 16 Re: Exclusion of Testimony By Captain Charles Lee must be denied.

2

See EMS Report, attached hereto as Exhibit 2.
3

Case 2:03-cv-01892-ROS

Document 227

Filed 01/05/2007

Page 3 of 4

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
1729523.1

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 City of Phoenix, Griffin, Dunn, Lynde and Monson

Electronically filed and served this 5th 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

4

Case 2:03-cv-01892-ROS

Document 227

Filed 01/05/2007

Page 4 of 4