Free Motion in Limine - 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. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' MOTION IN LIMINE NO. 16 RE: EXCLUSION OF TESTIMONY BY CAPTAIN CHARLES LEE

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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. ___________________________________ _

Plaintiff Teresa August moves to exclude from trial evidence the testimony of Captain Charles Lee. Capt. Lee's testimony will invite a full exploration of the arrest of Mark August, which the Court has already excluded from evidence. Moreover, the

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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. In his capacity as a responding EMT, Capt. Lee provided the initial medical attention received by Mrs. August while she was still at the scene, and is expected to testify that Mrs. August was not complaining about severe pain, did not identify Defendants as responsible for her injury, and was not responsive to Capt. Lee's request for this kind of information. While Capt. Lee was examining Mrs. August and asking her about her dislocated elbow, Mrs. August was distracted by the conflict between Mark August and 17-year-old Sam Hickey, which culminated in Mark's arrest. The distraction

became even more disruptive to Mrs. August as Defendants arrested Mr. August and Dakotah August reacted hysterically to the arrest of his father. Capt. Lee stated that as he talked with Mrs. August, she was non-responsive to him because she was looking over his shoulder at the other events1. Capt. Lee agreed that the scene occurring with Mark August was capturing Mrs. August's attention as he interacted with her. In the context of these other events at the scene, Mrs. August's failure to fully describe the pain from her dislocated elbow or to blame the officers is completely understandable, but much of that context is inadmissible as previously ordered by the Court. For Plaintiff to meet and explain this proffered testimony, she will necessarily have to tell the jury what she was looking at and why it was so distracting to her that it would affect her responsiveness to Capt. Lee's questions. To allow Capt. Lee to

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testify regarding his observations without the context would seriously prejudice Plaintiff and mislead the jury. Moreover, the testimony of Capt. Lee is cumulative and therefore, unnecessary. Defendants are expected to testify about the appearance of Mrs.

August's elbow post-injury, that they do not believe they caused the injury, and that Mrs. August was not complaining of severe pain from the injury. Treating physicians and medical experts are also expected to opine regarding the appearance of Mrs. August's elbow after it was dislocated, the symptoms reported by Mrs. August and the symptoms they would expect to occur (which Capt. Lee cannot testify about for lack of foundation). For the aforestated reasons, Capt. Lee's testimony will be prejudicial and invite a collateral discussion about Mark August's arrest. It will also be cumulative, and therefore, should be excluded. DATED this 4th day of January, 2007. TREON & SHOOK, P.L.L.C.

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By:

s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on January 4, 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:

Undersigned counsel interview with Capt. Lee on December 28, 2006.
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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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