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. 2 RE: DR. RICHARD SELIGSON'S COMMENTS & OPINIONS

Defendants hereby respond to Plaintiff's Motion in Limine No. 2 regarding Dr. Richard Seligson's comments and opinions and request that Plaintiff's Motion be denied for the reason that the statements contained in Dr. Seligson's medical records are admissible as an exception to the hearsay rule under Federal Rules of Evidence 803(4), are considered records of a regularly conducted activity under Federal Rules of Evidence 803(6), and the statements contained therein are considered non-hearsay pursuant to 803(d)(2), Federal Rules of Evidence, as an admission by a party opponent. I. INTRODUCTION Dr. Seligson was the emergency room physician on call at the Arizona Heart Hospital on the evening of June 10, 2002. Phoenix police officers transported Teresa August to the Arizona Heart Hospital for observation and review of her elbow injury, as

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well as because of her reported preexisting heart condition. Plaintiff seeks to exclude all of the "unfavorable" opinions of Dr. Seligson, Plaintiff's treating physician, while seeking to include all of Dr. Seligson's "favorable" opinions. Because the Rules of Evidence support the admission of Dr. Seligson's opinions and the introduction of his medical records, his testimony, taken via videotape1, and his records should be allowed. II. LEGAL ARGUMENT A. Dr. Seligson's history of present illness and past medical history contained in the medical records are admissible. Plaintiff seeks to exclude references in Plaintiff's medical chart that were obtained during her interview by medical staff relating to her complaints of present illness, as well as past medical history. This is standard medical information that is obtained for purposes of treatment and diagnosis. It is inconceivable how Plaintiff can argue that Plaintiff's heart condition (she had four stents installed in her heart approximately one year before this incident and was the entire reason she was taken to the Arizona Heart Hospital in the first place), history of osteoarthritis and prior orthopedic procedures including joint replacements and dislocations would not be relevant to Dr. Seligson's treatment.2 Rule 803(4), F.R.E., provides as an exception to the hearsay rule: statements made for purposes of medical diagnosis or treatment in describing medical history, or past or present symptoms, pain, or sensations, or the inception or general Dr. Seligson's deposition was videotaped and portions of his videotaped deposition have been designated for presentation at trial by both Plaintiff and Defendants' attorneys in the Joint Pretrial Order. In addition, his medical records from the Arizona Heart Hospital have been listed as exhibits. 2 The fact that Mrs. August may have incorrectly identified that it was her left shoulder which suffered a prior injury as opposed to her right shoulder does not make the information inadmissible, but merely explainable by Mrs. August. In fact, Plaintiff's other treating physician, Dr. Purdy, made the exact same error in her records, misidentifying Plaintiff's left elbow as the site of injury, as opposed to the right elbow. This information goes to the weight of the evidence, not its admissibility.
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character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Contrary to Plaintiff's argument, there is no requirement that the statements for purposes of medical diagnosis or treatment be made directly to the doctor making the diagnosis and/or treatment. The statements can be made to other care providers, so long as the physician relies on the statements in forming the diagnosis and/or treatment. See Advisory Committee Note to Federal Rules of Evidence Rule 803(4), 1972 proposed Amendment. Plaintiff argues the reference to Plaintiff's preexisting depression contained in Seligson's past medical history section of his notes is irrelevant and unduly prejudicial under Rule 403. First, the information is admissible as non-hearsay under Rule 803(4), Federal Rules of Evidence. Second, the record qualifies as non-hearsay under Rule 803(3), a statement of the patient's then existing state of mind, emotion, sensation or physical condition. Further, Dr. Seligson's records constitute a record of regularly

conducted activity, considered an exception to the hearsay rule under Rule 803(6). Statements made by Ms. August about her depression then existing, as well as previous depression, are also considered non-hearsay under Rule 801(d)(2), an admission by a party opponent. Notwithstanding all of these exceptions to the hearsay rule, and even as a statement by a party opponent, the evidence regarding Ms. August's depression is independently relevant and admissible and outweighs any 403 considerations. The

information should be admitted so that the jury may properly assess Ms. August's credibility and may be considered by the jury as impeachment evidence. When it comes down to it, this case is a he said/she said dispute. Ms. August claims that police officers stormed into her house uninvited like a S.W.A.T. team, threw her arm behind her back and ripped the elbow from its socket like pulling a weed

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from a clump of dirt. All the while, she was innocently compliant, confused and trying to protect her grandchildren. When we took her deposition, Ms. August testified that this time of her life was a very happy time for her and she was free of medication for depression. Yet, her medical records tell a different story. She was, in fact, suffering from depression and taking medication. In her deposition, when confronted with this information, she

acknowledged not only was she taking medication, but then contradicted herself and testified that this was, in fact, a very difficult time and that she was suffering from "a lot of depression" because her husband had died, she was dealing with Christmas, her anniversary, and it was a very difficult time. In a he said/she said credibility case, these kinds of contradictions are crucial in providing the jury information they need in order to satisfy their burden of determining who is telling the truth, who is the more credible witness, who has sustained their burden of proof. In addition to these very important credibility issues, Plaintiff has claimed emotional damages from this incident. If she was, in fact, suffering from depression at the time of this incident, or even shortly prior to the incident, this information is relevant and the jury is entitled to know this in assessing whether her damages are really exacerbation of her preexisting condition, or a new condition entirely. Plaintiff cannot shield this information from the jury as if it never existed and then ask the jury to award her damages for her mental state. B. Dr. Seligson's Opinion Regarding Susceptibility to Elbow Dislocation Plaintiff objected to Dr. Seligson's "opinion" to Ms. August's susceptibility to elbow dislocation but, in fact, what the deposition reveals is that he actually reported that she was not more susceptible to right elbow dislocation. Here is Dr. Seligson's actual deposition testimony:
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Q: Is there anything about this past medical history that you see here reported in the medical chart that would make her more susceptible to a right elbow dislocation? Mr. Silverman: Object to form. Answer: No. Well, let me clarify that. Ms. Wieneke: Certainly. A: She has a history of Osteoarthritis, I don't know what joints are involved. If she had severe osteoarthritis or substantial osteoarthritis of her shoulder ­ I'm sorry, of her elbow, that may make her more susceptible to joint injuries. Let me leave it at that. See Seligson deposition, pages 15, lines 18, through page 16, line 8, attached as Exhibit 1. As can be seen, Dr. Seligson is saying no, she would not be more susceptible. The only way she would be is if there was evidence of severe osteoarthritis, and he does not have evidence that she has severe osteoarthritis so he cannot form that opinion. Thus, Plaintiff's objection is to an opinion that Dr. Seligson has not expressed. C. Dr. Seligson's opinion regarding Teresa's struggle is relevant and admissible. As part of the completion of his investigation in this matter, Officer Monson, after transporting Plaintiff to the Arizona Heart Hospital, stood by while Plaintiff underwent treatment. Thereafter, he spoke with Dr. Seligson, the attending trauma room physician, for a report, as is typical. He relayed the information he obtained from Dr. Seligson in his departmental report as follows: Dr. Seligson was the attending trauma room physician. Dr. Seligson stated he had seen hundreds of people in handcuffs with dislocated shoulders but never elbows and that she must have really been fighting. The Doctor the (sic) reset the elbow and we stood by, awaiting medical release. See police report, Exhibit 2. When Dr. Seligson was asked about this comment, he did not recall making it. This portion of the departmental report was read to him verbatim to refresh his

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recollection and Dr. Seligson said that he believes he said "something akin to that." He was then asked the following: Q: Given the mechanism of the dislocation of the elbow and the treatment that you rendered, is it the type of injury that one would get while fighting a handcuffing? Mr. Silverman: Object to the form. A: I would expect, yes. See deposition of Dr. Seligson, page 20, lines 2-6, Exhibit 1. First, the information contained in the departmental report and read to Dr. Seligson during his deposition is appropriate to be read to the jury as was read to Dr. Seligson as refreshing recollection and pursuant to Rule 612, Federal Rules of Evidence, a writing used to refresh memory, and as a recorded recollection pursuant to Rule 803(5), Federal Rules of Evidence, a recorded recollection. Plaintiff's further argument that the use of the word "fighting" inaccurately conflicts with the Defendants' position in this case is puzzling at best. Defendants have always maintained that Plaintiff improperly resisted Defendants' efforts to subdue her. One only need look up the word "resist" in a thesaurus to come up with the word "fight," "defy," "oppose," as just a few of the synonyms for the term resist. D. Dr. Seligson has the appropriate foundation to testify regarding the mechanism of the injury. Plaintiff claims that Dr. Seligson, a treating physician, cannot testify regarding the mechanism of Plaintiff's injury. Yet, Plaintiff's other treating physician, Dr. Purdy, is testifying regarding the mechanism of Plaintiff's injury. Plaintiff has moved in limine to exclude Defendants' biomechanical engineer from testifying regarding the mechanism of injury. Apparently, only the person Plaintiff says can testify regarding the mechanism of injury is qualified to provide these opinions, regardless of background, education and training. Such is not the standard for admissibility of expert opinion.

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Dr. Seligson sees 4,000 patients a year. Of these, in over 30 years, he has treated 6,000 in custody patients. He estimates he has treated hundreds of patients with joint dislocations. As for Plaintiff's injury, he distinguished her dislocation as a medial dislocation from a lateral dislocation. He explained a lateral dislocation is commonly caused when you trip and fall and you extend your arms out in front of you to brace you as you fall and lock your arms to brace yourself in the fall. That is not what happened to Plaintiff. She suffered a medial dislocation. In a medial dislocation, such as what Adequate foundation was

Plaintiff underwent, her elbow went toward the body.

established in the record for Dr. Seligson to explain what he saw, his treatment, and the mechanism of injury. E. Plaintiff cannot "carve out" only the "good" opinions of Dr. Seligson. Plaintiff's Motion seeks to eliminate all the unfavorable opinions of the treating physician, apparently for which he unqualified to testify, but seeks to allow him to testify regarding things such as "Plaintiff's pain" and that he doesn't see this type of injury very often. The Rules of Evidence support the admissibility of Dr. Seligson's opinions and his records and, therefore, they should be admitted. III. CONCLUSION Based on the foregoing, Plaintiff's Motion in Limine should be denied.

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1715168.1

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

s/Peggy Sue Trakes

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