Free Other Notice - District Court of Arizona - Arizona

EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA NO. CIV 03-1892 PHX-ROS TERESA AUGUST, a single woman, Plaintiff, v. 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,

JOINT PROPOSED PRETRIAL ORDER

Defendants.

Pursuant to the Court's Order entered September 20, 2006, following is the Joint Proposed Pretrial Order to be considered at the Final Pretrial Conference set for December
IS, 2006 at 1:30 p.m. A. PRETRIAL COUNSEL FOR THE PARTIES PLAINTIFF: Daniel B. Treon Stephen E. Silverman KellyJo Treon & Shook, PLLC 2700 North Central Avenue, Suite 1000 Phoenix, AZ 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Daniel Treon Cell: (602) 695-6317 Stephen Silverman Cell: (480) 326-6787 [email protected] [email protected] [email protected]

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DEFENDANTS:
Kathleen L. Wieneke Jennifer L. Holsman Jones, Skelton & Hochuli, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, AZ 85012 602-263-1700 (phone) 602-263-1943 (fax) [email protected] [email protected]

B.

STATEMENT OF JURISDICTIONNENUE

This Court has jurisdiction based on 28 U.S.C. §§ 1331 and 1343. The Court bas jurisdiction over the state law claims pursuant to 28 U.s.C. §§ 1367 and 1441(c).

C.

NATURE OF ACTION

PLAINTIFF:
This is an excessive use of force of case brought under 42

use

§I 983

by Teresa

August. Plaintiff Teresa August contends that Defendant City of Phoenix Police Officers used excessive force when they arrested her on June 10, 2002. Plaintiff seeks damages for personal injuries suffered during her arrest and as a result of her arrest.

DEFENDANTS:
Plaintiff Teresa August filed this action under 42 U.S.C. § 1983 alleging state and federal claims against the City of Phoenix and its officers for actions they took while investigating a domestic violence incident. Plaintiff seeks damages for personal injuries sustained during her arrest. Defendants deny liability and damages. Defendants contend that any force used to effectuate Mrs. August's arrest was reasonable under the circumstances and that the officers are entitled to qualified immunity.

D.

JURYINON-JURY.

A jury trial has been requested. The Parties stipulate that the request was timely and properly made.

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E.

CONTENTIONSOF THE PARTIES

PLAINTIFF:
Although pursuant to the Court's September 20, 2006 order, Teresa August's state law claims for excessive force and negligence still remain, she chooses only to pursue her claim for excessive force under 42

use

§1983. She will not assert any claim against the

City of Phoenix, nor will she assert any state law claim for excessive force or negligence. In order to prevail on this excessive use of force claim, the Plaintiff must prove the following elements. 1) 2) 3) The acts of the police officers in effecting her arrest were intentional; The police officers acted under color of law; and The acts of the police officers were the cause of the deprivation of the

Plaintiff's rights protected by the Constitution and the laws of the United States. 9th Circuit Model Civil Jury Instructions, 11.1 Violations of Federal Civil RightsElements and Burden of Proof. The deprivation of Teresa August's federal constitutional rights occurred because the officers W1feasonably seized her. To prove an unreasonable seizure, Plaintiff must prove that a law enforcement officer used excessive force in making a wrongful arrest. Any additional force, however slight, constitutes unnecessary and excessive force and its actual as a battery. 1985). The court uses an "objective reasonableness" standard in determining whether or not law enforcement officers used force while making an arrest or seizure was appropriate under the 4th Amendment. Graham v. Counor, 490 US 386, 388 (1989). Factors to be Bustamante v. City of Tucson, 145 Ariz. 365, 701 P.2d 861 (App.

considered in determining the "reasonableness" of the force used include the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether she is actively resisting arrest or attempting to evade arrest. Teunessee v. Garner, 471 US 1,8-9 (1985). The officers' claim for qualified immunity failed at the summary judgment phase. They are not entitled to it given the extreme force necessary to cause the injury in question, and because they do not state which of them was the officer to have a hold of
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Teresa's ann at the time of the injury. Since the officers claim that Teresa injured herself or that she would not have been injured but for. struggling, and since they do not establish which of them actually injured her, they have the burden of proving what caused her injury under the single injury rule which shifts the burden of allocating the damages to the defendant. DEFENDANTS: Pursuant to the Court's Order dated September 20, 2006, the following claims remain: (1) Teresa August's excessive force claim under 42 U .S.C. § 1983 against Defendants Griffin, Lynde, Dunn and Monson; and (2) Teresa August's state law claim for excessive force.

(1)

Excessive Force Under 42 U.S.C. § 1983 Ae:ainst Individual Police Officer Defendants.

Plaintiff asserts that her constitutional rights have been violated under 42 D.S.C. § 1983 by the police officers. The Civil Rights Act of 1871 (42 D.S.C. § 1983) provides that "every person, who, under color of any statute, ordinance, regulation. custom or usage of any

state .... subjects. or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges. or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ... " 42 D.S.C. § 1983. A "person includes public officials in their individual capacity. City of Phoenix v. Yarnell, 184 Ariz. 310,316,909 P.2d 377, 383 (1995). Therefore, police officers face liability under § 1983 tort or are personally involved in the alleged

when they commit a constitutional unconstitutional act.

In detennining whether a law enforcement officer's force while making an arrest or seizure was appropriate under the Fourth Amendment, the Court must use an "objective reasonableness" standard. See Graham v. Connor, 490 U.S. 386, 388 (1989). The

reasonableness of the force must be viewed from the perspective ofa reasonable officer at the scene, rather than with the benefit of 20/20 vision of hindsight. Id. at 393, 396. Further, the right to make an arrest or investigatory stop allows the officer to use some
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degree of physical coercion or threat. See Terry v. Ohio, 392 U.S. 1, 22-27 (1968). Factors to be considered in determining the "reasonableness" of the force used include the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether she is actively resisting arrest or attempting to evade arrest. See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). A police officer's failure to exercise due care in the exercise of his duties, is not sufficient to establish a violation of constitutional rights. A Plaintiff who suffers an injury due to the negligence of an individual officer does not set forth the basis for a

constitutional violation. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986); Buckey v. County of Los Angeles, 968 F.2d 791 (9th Cir. 1992). Contrary to Plaintiffs claim, state above, at page 4, line 8, there is no claim of "wrongful arrest" or "unreasonable seizure" as it relates to Plaintiff's arrest. Only the amount of force used to effect the lawful arrest of Plaintiff remains at issue after the Court's ruling on the Motion for Summary Judgment .. Further, Defendants have

conceded that they were acting under color of state law at the time of the incident.

While punitive damages are available against individual defendants under Section 1983 to punish violations of constitutional rights, they may be awarded only "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983).

The Court has ruled that there was probable cause to arrest Plaintiff for the assault on Sam Hickey, disorderly conduct and resisting arrest. Probable cause and

exigent circumstances justified the officers entry into Plaintiffs home to effect her arrest.

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Defendants assert the following affinnative defenses:

Qualified Immunity: The doctrine of qualified immunity protects a police officer not only from liability, but from the lawsuit itself. See
Mitchell v. Forsyth, 472 U.S. 511 (1985). Under this doctrine, an officer is immune from liability for excessive force where the officer mistakenly believes the amount offorce used is appropriate. See Saucier v. Katz, 533 U.S. 194,202 (2001). To detennine whether Defendants are entitled to qnaIified immunity, the Supreme Court applies a two part inquiry: (I) the court must detennine whether a constitutional right has been violated; (2) the court must then determine whether the right was clearly established. (Saucier, 533 U.S. at 198. The legal issue for the Court is "whether, in light of clearly established principles governing the conduct in question, the defendant officers could have reasonably believed that their conduct was lawful." Id. at 194-195; See Hunter v. Bryant, 112 S.Ct. 534, 537 (1991). Qualified immunity allows for mistaken judgments and protects "all but the plainly incompetent or those who knowingly violate the law." Sinaloa Lake Owners Assoc. v. City ofSimi (9th Cir. 1995). Valley, 70 F.3d 1095, 1099

1.

2. failure to Comply with Lawful Police Orders: Defendants allege that Plaintiff failed to comply with lawful police orders on the night of June 10,2002 and in failing to do so caused or contributed to her injuries, all of which would reduce any amount of recovery owing thereto. See A.R.S. § 28-622.
3. Defendants allege that the officers were justified in their use of force under the Constitution and that no constitutional violation occurred. Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 1867 (1989); Jackson v. City afBremerton, 268 F.3d 646, 651 (9th Cir. 2001). 4. Any damages suffered by Plaintiff was the result of actions or inactions of Plaintiff, and not of the Defendants. See A.R.S. § 12-2506, et. seq. 5. Defendants' and in good faith. actions were undertaken with valid, probable cause,

(2)

State Law Claim for ExcessiveForce.

Plaintiff Teresa August asserts that during her arrest on June 10, 2002, the named Defendant officers used excessive force against her. This claim is asserted against all Defendants. Although Plaintiff has stated herein that she is not pursuing this claim, she has not yet dismissed the claim and therefore, it remains in the case.

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The Arizona Tort remedy for excessive force is assault and battery. To establish a state law claim of excessive force, Plaintiff must prove that the Defendant intentionally caused a harmful or offensive contact with the Plaintiff to occur. Johnson v. Pankratz; 196 Ariz. 621, 2 P.3d 1266 (2000). Defendants assert the following affirmative defenses: 1. A person is justified in using physical force against another if in making or assisting in making an arrest or detention or in preventing the escape after arrest or detention of that person, such person uses or threatens to use physical force and all of the following exist: a. A reasonable person would believe that such force is immediately necessary to effect the arrest or detention; b. Such person makes known the purpose ofthe arrest or believes that it is otherwise known or cannot reasonably be made known to the person arrested or detained; c. A reasonable person would believe the arrest or detention to be lawful. See A.R.S. § 13-409. 2. A person is justified in using physical force against another to the extent the person reasonably believes that physical force is immediately necessary to prevent the commission of aggravated assault under A.R.S. § 131204(A)(I) or (2). A person is presumed to bc acting reasonably ifhe is acting to prevent the commission of this offense. A.R.S. § 13-411.

3.

Failure to Comply with Lawful Police Orders: Defendants allege that
Plaintiff failed to comply with lawful police orders on the night of June 10, 2002 and in failing to do so caused or contributed to her injuries, all of which would reduce any amount of recovery owing thereto. See A.R.S. § 28-622.

4. 5.

Plaintiffs actions were not in self-defense. Defendants allege that the officers were justified in their use of force. State

v. Fontes, 195 Ariz. 229, 986 P.2d 897 (App. 1998).
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6.

Plaintiffs claimed injuries and damages were not caused by Defendants' actions, but by her own negligent conduct and her assumption of the risk. Hildebrand v. Minyard, 16 Ariz. App. 583, 585, 494 P.2d 1328, 1330 (1982); Chavez v. Pima County, 107 Ariz. 358, 360, 488 P.2d 978, 980 (1971); Ariz. Canst., art. 18, § 5

7.

Any damages suffered by Plaintiff was the result of actions or inactions of Plaintiff, and not of the Defendants. See A.R.S. § 12-2506, et. seq.

8.

A person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. See A.R.S. § 13-404.

9.

The threat or use of physical force against another is not justified to resist an arrest that the person knows or should know is being made by a peace officer, whether the arrest is lawful or unlawful. See A.R.S. § 13404(B)(2).

10.

Defendants' actions were undertaken with valid, probable cause, and in good faith.

11.

Immunity under A.R.S. § 12-712: This statute provides that the Defendants can be found not liable if the Plaintiff is harmed while the Plaintiff is attempting to commit, committing, or fleeing from a felony criminal act. Plaintiff was attempting to commit a felony at the time of her arrest. But see Sonoran Desert Inv., Inc. v. Miller, 213 Ariz. 274,141 P.3d 754 (2006).

F. 1.

STIPULATIONS

AND UNDISPUTED

FACTS!

Teresa August lives in a home on McLellan Avenue in North Central Phoenix.

2. Mrs. August was sixty-eight years old on June 10, 2002. 3. On June 10,2002, Mrs. August lived with her nine-year-old grandson, Marcus Dakotah August, and intermittently her 17 year old grandson Sam Hickey, too.

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4. On June 10, 2002 Mrs. August called 9-1-1 regarding an altercation with her 17 year old grandson, Sam Hickey. 5. The four defendant police otlicers arrived and latcr went to arrest Mrs. August. 6. During the arrest, Mrs. August suffered a dislocated right elbow.

G,
1.

PLAINTIFF'S CONTENTIONSOF DISPUTEDFACT
That it was Sam Hickey and not she who was the aggressor at her house

and that she needed the assistance of the police in dealing with her mentally disturbed grandson.

2.

That Officer Dunn's initial investigation failed to determine who the

aggressor was and that she had been assaulted by Sam Hickey; further, that she as the homeowner was telling Officer Dunn to remove from her property someone she did not want present and that he failed to act in response to this lawful request. 3. That after she talked with Officer Lynde for several minutes, she went back

into her house and Officer Lynde did not try to stop her or tell her she was under arrest or impede her return to her house in any way. She was upset that the officers had not removed Sam from her property (and upset about what Sam had done to her), but she was not acting like a screaming lunatic as the officers alleged. 4. That once inside her house she continued to talk with Officer Lynde for

several minutes through her front security screen door. There was no "barricade" going on. The matter of Dakotah's security, later alleged as the officers' grounds for wanting to get into the house, was not raised. After having a calm conversation with Officer Lynde, and in compliance with his request, she opened the door and let the officer into the atrium. She went to

lock the door behind Officer Lynde, and he Officer Lynde complained that she was "locking him in" and that she could not do that. She then returned to the door to unlock it, did so, and was opening the door to let Officer Lynde out of the house. 5. At the moment she unlocked the door and opened it slightly, the other three

officers came bowling through her doorway and mobbed her. She did not know what was going on as they quickly went "hands on" with her. The officers "T -cd" her up
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and then went to handcuff her. While doing this, she complained loudly, and then screamed in pain as she felt her elbow being violently twisted and dislocating. 6. The officer and/or officers used an excessive amount of force on her arm

when effecting her arrest. 7. Teresa August suffered severe and debilitating injuries as a direct result of

the officer and/or officers' excessive use of force. 8. Teresa August made a complaint with the City of Phoenix regarding the

officers' treatment of her. As a result of making such a complaint, the City of Phoenix professional standards bureau should have instituted an investigation of1he officers' conduct, which would have included securing radio dispatch transmissions of officers at the scene of Mrs. August's house. Tapes of the transmissions were not secured, and thus the officers' on-air statements about what was in fact unfolding, which evidence may have helped Teresa August, are lost. Instead of pursuing an internal affairs investigation however, the City of Phoenix stonewalled any such investigation when it did not take recorded statements from the officers. Phoenix persisted in this whitewashed investigation by hiring a police practices "expert" from within its own department, to avoid scrutiny from an outside third party expert. 9. The nature of the elbow dislocation alone shows that the force used by the

officers was excessive. Defendants cite emergency room physician Dr. Seligson for the proposition that Mrs. August had to have been struggling for such a dislocation to occur. But Dr. Seligson's opinions are without foundation and should not be admitted in evidence. Dr. Seligson was not competent to conclude this and later clarified that

it would be impossible to someone to exert enough force to dislocate their own elbow. In any event, the testimony by Dr. Beth Purdy, Mrs. Augusfs elbow specialist, is to the contrary. Importantly, the force of the dislocation was strong enough to cause an "avulsion" ofthe lateral collateral ligament, which is when bone fragments are ripped from the arm bone where the ligament attaches, much like a clump of dirt is ripped from the earth when pulling weeds. 10. Teresa August's criminal charges were pressed as an attempt to bolster

Defendants' "officialized" version of events, and yet the prosecutor moved to dismiss all of them "in the interests of justice." The fact of this dismissal may be admitted to
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rebut the defense of justification, which is what the defendants claim when they allege that they had to arrest Teresa to protect the minor grandson who remained in the house.

H.

DEFENDANTS'CONTENTIONS OF DISPUTED FACT

On June 10,2002, Plaintiff Teresa August called 911 and demanded that the police come and remove Sam Hickey from her house. Mrs. August stated that her grandson was attacking her and that she wanted him out of her house. Mrs. August also admitted to throwing a remote control at Sam Hickey and stated that she had bit him on the hand when he wouldn't get off of the computer. Sam Hickey confirmed Plaintiffs claims and informed the 911 dispatcher that he had been injured by the remote control she threw at him. The 911 dispatcher then radioed the police about a domestic violence dispute taking place in Plaintiffs home. When Phoenix police officers arrived to the domestic violence call at the August home, Mrs. August was out of control, yelling, screaming profanities and uncooperative. She had already admitted to attacking her grandson and infomed them that another minor child was inside the house. When Mrs. August ran into her house and locked the door behind her, locking herself and her young grandson inside. officers pleaded with her to open the door. When she finally related and allowed Officer Lynde inside, she immediately tried to lock him inside, creating an unsafe and dangerous situation. Fearing for their young colleague's safety, Sergeant Griffin and Officers
DUlUl

and

Monson stopped Plaintiff from locking the door and entered the house. Once inside, Plaintiff continued her verbal onslaught of abuse toward the officers. She would not cooperate and would not listen. When Mrs. August started to retreat deeper into the home, she was placed into investigative detention. Instead of complying with the officers' commands. Plaintiff unlawfully resisted, was combative, uncooperative and illegally refused to adhere to the officers' lawful authority, all while screaming profanities. An authorized and approved ann bar "hold" technique was used to assist in handcuffing Plaintiff in an effort to restrain her. All the while, she continued to illegally struggle and resist. Plaintiff was then taken to her front yard. Because she complained of
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discomfort in her right extremity, the Fire Department was called to medically assess her. Plaintiff was subsequently arrested atthe scene for Resisting Arrest, a class 6 felony, one count of assault against Sam Hickey, a class 1 misdemeanor, and 1 count of disorderly conduct, a class 1 misdemeanor. Plaintiff was taken to the Arizona Heart Hospital for evaluation on an injury to her elbow. She was subsequently transported to the Maricopa Medical Center for further evaluation. The emergency room physician, Dr. Seligson, told the officers that "he had seen hundreds of people in handcuffs with dislocated shoulders but never elbows and that she must have really been fighting.!! Dr. Seligson testified during his deposition that Teresa would not have sustained the injury to her elbow had she not been struggling with the officers as they performed the ann bar hold. Teresa was treated and released from the hospital and never booked into jail. Teresa August was charged with disorderly conduct, A.R.S. § 13-2904; resisting arrest, A.R.S. § 13-2508; and assault, A.R.S. § 13-1203. The Arizona Superior Court made a finding that probable cause existed for Teresa August's arrest on June 10,2002. This Court found that the officers' conduct in arresting Plaintiff for resisting arrest was lawful and legally justified. The PSB investigation conducted after this incident was unable to be completed because Mrs. August refused to be interviewed. Her attorney, Dan Treon, would not

allow her to submit to an interview by PSB so that the investigation could be completed. Mr. Treon made no request for the preservation of audio tapes. Car to car or radio to radio transmissions are not recorded by the City of Phoenix so "tapes" are not capable of being retained. I. ISSUES OF LAW IN CONTROVERSY

PLAINTIFF: 1. Whether Plaintiff has established her claims of excessive force under 42

use

§ 1983. 2. Whether the City of Phoenix Police Department breached its internal

policies and procedures in failing to procure and secure tape recordings of dispatch calls
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made by officers during their time at Teresa August's house, and whether Plaintiff will be entitled to a spoliation of evidence instruction for the Police Department's failure to obtain this information. 3. Whether the City of Phoenix Professional Standard's Bureau ("PSB")

Investigation caused or resulted in the loss of tape recorded evidence of the events transpiring at Teresa August's house (the dispatch calls). 4. Whether Defendants' use of internal, in-house "expert" Commander

Hynes, as their expert witness in police practices, maybe seen as a white-wash of the PSB investigation into Teresa August's complaints to the Police Department. 5. 6. Whether Defendants' expert witnesses will be allowed to opine. Whether Defendants will be allowed to cross exam witness and fanner

party Mark August regarding his interactions with his ex-wife on purely collateral matters. Defendants' investigator contacted Mark August's ex-wife of several years and attempted to dig up dirt on him and smear him with evidence of his and her domestic violence history fTOmyears gone by. Defendants allege that Mark August's commwrication with her on the subject of this investigation constituted witness tampering. Defendants have advised that 7. Defendants waste of judicial resources and valuable court time for refusing

to stipulate in evidence Plaintiff s medical bills and thus necessitating that Plaintiff call all of the medical services providers' custodians of records to testify that the charges are reasonable and customary. Defendants base this position based on their expressed intent to argue that they are responsible only for what Teresa August's health insurance company paid for her medical bills. This argument unequivocally violates the collateral source rule. 8. Whether the minor struggling that occurred between Sam Hickey and his

grandmother before police arrived could have contributed in any way to the dislocation of Teresa's elbow, as per Defendants' biomechanical expert witness, Michael Carhart. Plaintiffs treating physician, Dr. Beth Purdy, and orthopedic surgeon with a subspecialty in elbows, opines that it had nothing to do with the dislocation.
9.
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Whether any of defendants' claims regarding Teresa August's own actions
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constitute a defense to her claim that the officers' use of force was excessive under 42

use

§1983. 10. Whether evidence of conflicts Teresa August had with employees of

Madison Meadows Middle School related to parking, and how she conducted herself during her interactions admissible. 11. 12. Whether Teresa August's employment records are admissible. Whether Teresa August lost any wages from her part time teaching job as a with them (and with the school resource police officer) are

result of the injuries she suffered. 13. Whether defendants are entitled to the qualified immunity defense when

none of them identifies which of them (and not one of them claims to be the one) who had his hand on Teresa August's right arm at the time she was injured, hence precluding any claim that anyone of them could have been mistaken as to appropriateness of the amount of force applied. 14. Whether any officer at the scene can testify to his opinion about any other

officer's and/or officers' use of force as being appropriate. 15. Whether Plaintiff is entitled to attorneys fees under 42

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§1988.

DEFENDANTS: 1. Whether Plaintiff negligently or intentionally placed herself in harm's way

on June 10, 2002, thereby causing her own injuries. 2. incident. 3. Whether Sergeant Griffin and Officers Lynde, Dwm and Monson engaged Whether Plaintiff suffered any injuries as a result of the June 10, 2002

in excessive force against the Plaintiff in violation of 42 U.S.C. § 1983. 4. claim. Whether Plaintiff may prosecute her alleged negligent PSB investigation

5.
6.
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qualified immunity. 7. 8. Whether Defendants engaged in any wrongful conduct as alleged. Whether and to what extent any damages allegedly suffered by Plaintiff

were the result of actions or inactions of Defendants. 9. 10. 11. 12. Whether Defendants' conduct was legally justified under state law. Whether and to what extent damages have been sustained. Whether Plaintiff is entitled to punitive damages. Whether Plaintiff has established a prima facie case of excessive force

under 42 V.S.C. § 1983. 13. Whether Plaintiff has established a prima facie case of excessive force

under Arizona state law. 14. Whether Plaintiff has established a prima facie case for negligent injury

under Arizona state law. 15. Whether Sergeant Griffin, Officer Dunn, Officer Lynde or Officer Monson

were the proximate cause of Plaintiffs alleged injury. 16. Whether Defendants acted in bad faith and with "wanton, willful, and

malicious" conduct on June 10, 2002. 17. 18. Whether Defendants are entitled to attorneys fees under 42 V.S.C. § 1988. All issues preserved in Defendants' Motion for Summary Judgment and

Motions in Limine. 19. Whether Plaintiff should be precluded from objecting to the admissibility

of the audio tapes of the 911 tape recording and interview of Plaintiff because she failed to answer Defendants' Request for Admission regarding the authenticity in good faith. 20. 21. Whether the PSB investigation was a subsequent remedial measure. Whether the Plaintiffs attorney is precluded from representing the Plaintiff

due to his role as a witness in this matter. 22. Whether Plaintiff properly disclosed impeachment evidence in her Request

for Production response.
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23.

Whether Plaintiff may challenge the legality of the officers' entry into

Plaintiffs home, Plaintiffs arrest or Mark August's arrest. 24. Whether Plaintiff is entitled to the amount of reasonable and necessary

medical expenses representing the amount the providers accepted as payment in full for servIces. 25. Whether Plaintiff should he allowed to call witnesses at trial who were not

previously disclosed.
26. Whether Plaintiff should he precluded from using any impeachment

evidence at trial because ofber failure to disclose in her Response to Rule 34 Request for Production. J. SEPARATE TRIAL OF ISSUES

The parties are not aware of any issues that should be tried separately in this

matter.
K. WITNESSES WITNESSES:

PLAINTIFF'S

1.

PlaintiffTeresaAugust

Plaintiff Teresa August is expected to testify regarding her claims and damages as related to the incident on June 10,2002. Plaintiff will be called at trial. 2. Sam Hickey

Sam Hickey witnessed the officers storm Teresa's front door and instantly grab her and heard her yell in pain. He will testify at trial. 3. Pamela Hickey

Sam Hickey's mother. She witnessed Teresa August and the officers at the scene and will testify about the actions of the officers and Teresa's injuries. She will also offer testimony about the nature of Sam's mental health illnesses. She will testify at trial. 4. Mark August

Teresa August's adult son and father of Dakotah August. Dakotah August called
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his dad, Mark, on Mark's cell phone and cried, 'the police are beating up grandma!' Mark will testify about his observations of his mother's injured elbow, and her damages. He will testify at trial.

5.

Dakotah August

Teresa August's grandson who witnessed the officers arrest and injure his grandmother. He will testify about his personal observations of all events on June 10, 2002, and about his grandmother's damages. He will testify at trial.

6.

Stepheu August

Stephen August is expected to testify regarding his mother's claims and damages as related to the incident on June 10,2002. Objection. He will testify at trial. or in

Plaintiff never listed this witness in her Rule 26 Statement

answers to discovery. 7. 8. 9. Defendant Officer Lyle Monson Defendant Officer Nicholas Lynde Defendant Officer Toby Dunn

10. 11.

Defeudant R. Griffin Lt. Joseph TOMOI-Y. #483
c/o City of Phoenix Police Department

Lt. Tomary is expected to testify regarding his PSB's investigation of Teresa August's complaints to the City of Phoenix Police Department regarding the officers' abuse of her. Lt. Tomary will be called to trial. 12. Officer Warren Brewer c/o City of Phoenix Police Department

Officer Brewer conducted the follow-up investigation. at trial. Objection. Plaintiff never disclosed this witness.

Officer Brewer may testify

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13.

Sgt. John Balisk, #3545
c/o City of Phoenix Police Department

Officer Balisk conducted the follow·up investigation. testify about the results afms follow-up investigation.

It is anticipated he will

Officer Balisk may testify at trial.

Objection. Plaintiff never disclosed this witness.

14.

Sgt. Eric Wycoff,#5840
c/o City of Phoenix Police Department

Sgt. Wycoff authored a report on the Use of Force and Citizen Complaint No. 02050 on July 15, 2002. It is anticipated Sgt. Wycoff will testify regarding his conclusions from that investigation. Sgt. Wycoffwil1 be called at trial.

15,

Custodian of Records c/o Arizona Heart Hospital
1928 East Thomas Road Phoenix, AZ 85016

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. Custodian of Records c/o Maricopa Medical Center 2601 East Roosevelt Phoenix, AZ 85008

16.

Plaintiff will call this Custodian of Records to confinn that the bills presented in Plaintiff's case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial. Custodian of Records c/o Med Pro-ER PhysicianslRadiology 3255 East Elwood, Suite 110 Phoenix, AZ 85034

17.

Plaintiff will call this Custodian of Records to confinn that the bills presented in Plaintiffs services. case do constitute the charges for the respective medical service providers' Custodian of Record will be called at trial.

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18.

Custodian of Records c/o CIGNA Healthcare - Surgicenter
2302 North 75th Avenue Phoenix, AZ 85035

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiffs case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial.

19.

Custodian of Records c/o CIGNA Healthcare - Surgicenter
2302 North 75th Avenue Phoenix, AZ 85035

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiffs case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial.

21

Custodian of Records
c/o Beth A. Purdy, M.D. 2610 North 3" Street Phoenix, AZ 85004

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiffs case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial.

22.

Custodian of Records
c/o Beth A. Purdy, M.D. 2610 North 3rd Street Phoenix, AZ 85004

Plaintiff will call this Custodian of Records to confirm that the bills presented in Plaintiffs case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial.

Defendants object to this witness as duplicative. 23. Custodian of Records
c/o Beth A. Purdy, M.D. 2610 North 3" Street Phoenix, AZ 85004 Plaintiff will call this Custodian of Records to confirm that the bills presented in
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Plaintiffs case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial.

Defendants object to this witness as duplicative. 24. Custodian of Records
c/o Beth A. Purdy, M.D. 2610 North 3" Street

Phoelix, AZ 85004
Plaintiff will call this Custodian of Records to confinn that the bills presented in Plaintiffs case do constitute the charges for the respective medical service providers' services. Custodian of Record will be called at trial.

Defendants object to this witness as duplicative. 25. Custodian of Records c/o Alltel Mobile Telephone Company
Judy Welch,

26.

Police Department Records and Identification Bureau
Ms. Welch received a memo on September 24, 2002 from Communications Bureau commander Blake McClellan which stated that the recordings of radio broadcasts had been destroyed within 60 days of the date of the incident. She will be called to testify.

Objection. Plaintiff never disclosed this witness.
28. Blake McClellan

Commander of Communications Bureau
Appears to have authored a September 24,2002 memo to Judy Welch of Records

and Identification Bureau to advise that the recordings of radio transmissions made on June 10,2002 were destroyed after 60 days. He will be called to testify.

Objection. Plaintiff never disclosed this witness.
DEFENDANTS' WITNESSES:

Defendants requestthey be permitted to cross-examine Plaintiff's witnesses during Plaintiffs
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case, as opposed to be limited to the scope of direct.

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