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' RESPNSE TO PLAINTIFF'S MOTION IN LIMINE NO. 9 RE: IMPROPER SUGGESTION THAT PLAINTIFF'S COUNSEL DRAFTED PLAINTIFF TERESA AUGUST'S TREATING PHYSICIAN, DR. BETH PURDY'S, EXPERT OPINION

Defendants submit this Response to Plaintiff's Motion in Limine No. 9 Re: the Improper Suggestion that Plaintiff's Counsel Drafted Plaintiff Teresa August's Treating Physician, Dr. Beth Purdy's Expert Opinion. Plaintiff's Motion must be denied because there is evidence that Plaintiff's counsel wrote and/or drafted Dr. Purdy's expert opinion in this case and this area of questioning is appropriate for cross-examination. Plaintiff's counsel sent Dr. Purdy a letter on August 31, 2004, outlining the facts of the case from his perspective and enclosing piecemeal evidence regarding the case. The fact that Dr. Purdy used little to no outside, non-biased information, is critical evidence for the jury to consider in evaluating Dr. Purdy's testimony. In the same vein,
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Plaintiff's counsel can clearly discuss this information with Dr. Purdy during direct examination or on re-direct examination. In addition, the August 31, 2004, correspondence from Plaintiff's counsel states: I enclose, pursuant to our discussion, a draft of an expert witness disclosure statement. You asked that I put into draft form the document we ultimately will need to submit to the court as your report. I appreciate you (sic) desire to proceed this way as frankly it will save us money on the expert witness fees. I thus have attempted to put our conversation into words and ask that you edit it carefully so that the statement provided to defendants is based on your words, not mine."1 It is Plaintiff's counsel who wrote correspondence to Dr. Purdy stating that he "drafted" a copy of "her" expert report. Should Plaintiff's counsel want to address this issue with Dr. Purdy to explain what his correspondence meant, direct examination or redirect examination would be the appropriate time. To bar Defendants from questioning

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Dr. Purdy about the correspondence sent to her from Plaintiff's counsel, however, is inherently unfair and prejudicial to the defense of this matter. Evidence that Plaintiff's counsel drafted Dr. Purdy's report is inherently more probative than prejudicial and must be presented to the jury for their consideration. The jury will be then left to consider its value in their evaluation of Dr. Purdy's testimony. Because questions regarding who drafted Dr. Purdy's report and what documents she reviewed in preparation of drafting her report, are proper questions for cross-examination, Plaintiff's Motion in Limine No. 9 Re: Improper Suggestion that

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See Exhibit 1 to Plaintiff's Motion in Limine.
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Plaintiff's Counsel Drafted Plaintiff Teresa August's Treating Physician, Dr. Beth Purdy's, Expert Opinion, 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

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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