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

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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

PLAINTIFFS' MOTION IN LIMINE NO. 14 RE: SPECULATION BY SAM HICKEY ABOUT WHETHER PLAINTIFF HAD STRENGTH TO TWIST HER OWN ARM OUT OF ITS JOINT

Plaintiff moves to exclude any testimony by Sam Hickey regarding whether Mrs. August has the strength to twist her arm out of its socket. During his deposition, Sam Hickey was asked about the dispute with his grandmother that led to the 9-1-1 call that brought Defendants to Plaintiff's home (EXHIBIT 1, December 9, 2004 deposition of Sam Hickey). When asked about Mrs. August's deposition testimony, Mr. Hickey replied, "...And if she somehow had the strength to twist her arm out of dislocation, then I suppose it would be possible..." Exhibit 1, 106:14-16. Later in the deposition, when asked if it was "possible that Case 2:03-cv-01892-ROS

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your grandmother could have gotten injured because of her struggling and flailing about of her arms?", Mr. Hickey replied, "It's possible but not probable because she didn't indicate any sort of injury after that." (EXHIBIT 1, 146:12-19) This line of questioning seeks impermissible speculation. Mr. Hickey did not dislocate Mrs. August's elbow and has no experience or medical training upon which to base such an opinion. Without personal knowledge or any foundation for his opinion, any testimony from Mr. Hickey regarding the dislocation of Mrs. August's arm or elbow is inadmissible as speculation. Walker v. Boeing Corp., 218 F.Supp.2d 1177 (C.D.Cal. 2002) (speculation

regarding motive for firing inadmissible) (citing Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1028 (9th Cir. 2001), Fed.R.Civ.P. 32(a), 56(e) and Fed.R.Evid. 602. Plaintiff therefore moves for an order that Defendants cannot inquire of Mr. Hickey about the causation of Mrs. August's dislocated elbow. DATED this 3rd 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
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I hereby certify that on January 3, 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]

Jennifer L. Holsman:
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Randall H. Warner: [email protected]; [email protected] By: s/ Aly Shomar-Esparza

Case 2:03-cv-01892-ROS

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