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 City of Phoenix, 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. 3 RE: DR. BROWN'S TESTIMONY AS DEFENDANTS' MEDICAL EXPERT

Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson, through counsel submit this Response to Plaintiff's Motion in Limine No. 3 Regarding Dr. Brown's Testimony as Defendants' Medical Expert. Plaintiff's Motion in Limine must be denied because: (1) Plaintiff's assertion that Dr. Brown was a "treating physician" is unsupported by the evidence; (2) Plaintiff waived any alleged physician-patient privilege; and (3) the supplementation of Dr. Brown's expert report was proper. This Motion is supported by the following Memorandum of Points and Authorities, pleadings on file with the Court and any oral argument the Court may hold in this matter.

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MEMORANDUM OF POINTS AND AUTHORITIES
I. BACKGROUND. Plaintiff alleges that "Dr. Brown is a professional witness who transformed the independent medical examination of Mrs. August into a treating physician-patient relationship by suggesting treatments to Mrs. August during the exam, and improperly pressured Mrs. August by attempting to sell her supplements from his company, 4-U Nutraceuticals Inc., during the examination."1 Plaintiff's argument is without merit and the Motion in Limine must be denied. II. LEGAL ARGUMENT. A. Independent Examination of Plaintiff. Plaintiff appears to be asserting that because Dr. Brown allegedly showed her vitamins during her IME, he has become her "treating physician" and all conversations between the two are therefore privileged by A.R.S. § 13-4062(4). As a result of this "privilege," Plaintiff seeks to exclude Dr. Brown from testifying at trial. As outlined in State v. Wilson, the Court identified four elements that must be considered in determining whether the physician-patient privilege exists under A.R.S. § 13-4062(4): (1) the patient must not consent to the proffered testimony; (2) the witness must be a physician or surgeon; (3) the information must have been imparted while the physician was attending the defendant; and (4) " 'the information must be necessary to enable the physician to prescribe or act for the treatment of the defendant.'" 200 Ariz. 390, 26 P.3d 1161 (App. 2001); see also State v. Morales, 170 Ariz. 360, 363, 824 P.2d 756, 759, quoting State v. Beaty, 158 Ariz. 232, 239, 762 P.2d 519, 526 (1988).

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See Plaintiff's Motion in Limine, pages 1-2.
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At the start of the subject IME, Plaintiff was given a "Notice" to sign regarding Dr. Brown's role as an independent examiner. This waiver stated, "A United States Federal court, an Arizona State court, and/or a party in a civil action in which you are involved have required you to be present today for the purpose of being examined by Dr. Stephen G. Brown...This medical examination will be an independent, objective evaluation of your physical and/or mental condition as it relates to the Civil Action."2 (emphasis added). Based on this acknowledgment form, Plaintiff knew that she was being evaluated by an "independent, objective" physician, a different factual scenario than presented in Wilson. In addition, Plaintiff did not object to Dr. Brown serving as the IME physician in this case as was the issue in Martin v. Superior Court, 104 Ariz. 268, 270, 451 P.2d 597, 599 (1969). In Martin, the question before the Court was whether the trial Judge abused his discretion after granting defendants' motion for a compulsory physical examination pursuant to Rule 35(a), when the physician directed to conduct the examination, had once been a client of the defendants' attorney. Here, in contrast to

Martin, Plaintiff did not object to the IME on the "bias" or "prejudice" of Dr. Brown. Despite Plaintiff's attempt to argue otherwise, there was no "blurring of the lines" between Dr. Brown's role as the IME physician in this case, as is clear from the "Notice" Plaintiff signed acknowledging his role as an "independent" physician. Moreover, there is similarly no case law or statutory support that Dr. Brown "crossed over" from the IME physician to a treating physician by pointing out vitamins that were for sale in the front lobby of his office. Regardless, even if Dr. Brown did point out the vitamins, there was not a prescription written, no follow up care was provided and no

See "Independent Medical Examination ­ Civil Actions" form signed by Theresa August on December 1, 2004, attached hereto as Exhibit 1.
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further "treatment" to Plaintiff's elbow injury was given by Dr. Brown.3 Put simply, there is no evidence that Dr. Brown was Plaintiff's "treating" physician and Plaintiff's Motion in Limine must be denied. B. Plaintiff Waived Any "Privilege." Waiver of the physician-patient privilege "can be implied when a party injects a matter that, in the context of the case, creates such a need for the opponent to obtain the information allegedly protected by the privilege that it would be unfair to allow that party to assert the privilege." State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 13 P.3d 1169 (Ariz. 2000). Further, in Bain v. Superior Court, 148 Ariz. 331, 334, 714 P.2d 824, 827 (1986), the Court held that an implied waiver occurs when "a privilege holder (1) offers himself as a witness and voluntarily testifies with reference to privileged communications concerning the condition, ... or (2) places a particular medical condition at issue by means of a claim or affirmative defense". Directly at issue in this case is the injury to Plaintiff's elbow, medical care associated with the elbow and the type/extent of treatment associated with the injury. It is Plaintiff who explicitly inserted these medical issues into the case. Thus, even if Dr. Brown is considered a "treating" physician by the Court, he can still testify at trial as Plaintiff has waived any privilege related to her "care." Plaintiff is improperly attempting to pick and choose which "treating" doctors she wants to testify at trial (Dr. Purdy) and those she wants to claim can't testify because of the physician-patient privilege (Dr. Brown). This type of "cherry picking" is improper under Bain v. Superior Court. C. Supplementation of Report. Included in Defendants' Eighth Supplemental Disclosure Statement, dated August 2, 2004, was a reservation of rights to supplement Dr. Brown's expert opinions Notably absent from Plaintiff's Motion was an affidavit by Plaintiff that Dr. Brown suggested she even take vitamins.
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based on the disclosure of additional information: "This disclosure is based on the records in Defendants' possession at the present time and the records produced by Plaintiffs' counsel thus far. To the extent that releases or records have not been provided or

received, Defendants reserve the right to supplement this disclosure."4 Thereafter, Plaintiff agreed to the IME of Plaintiff, knowing that a report would be generated and Dr. Brown's expert opinions would be supplemented. Thus, any alleged untimely disclosure was inherently waived by Plaintiff after agreeing to undergo the IME. Regardless, Defendants produced a supplemental report prepared by Dr. Brown, which included his review of additional medical records and an independent medical review of the Plaintiff on February 21, 2005. A review of both reports shows that Dr. Brown's opinions did not change between the initial and supplemental reports and do not prejudice Plaintiff's defense in any way. III. CONCLUSION. Based on the foregoing, Plaintiff's Motion in Limine No. 3 Re: Dr. Brown's Testimony as Defendants' Medical Expert must be denied. DATED this 29th day of November, 2006. 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

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See Eighth Supplemental Disclosure Statement, attached hereto as Exhibit 2.
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Electronically filed and served this 29th day of November, 2006, 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

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