Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

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 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. 9 RE: IMPROPER SUGGESTION THAT PLAINTIFF'S COUNSEL DRAFTED PLAINTIFF TERESA AUGUST'S TREATING PHYSICIAN, DR. BETH PURDY'S, EXPERT OPINION

Plaintiff Teresa August moves this Court to exclude from evidence any
24

suggestion that her undersigned legal counsel wrote and/or drafted any of her treating
25

physician's, Beth A. Purdy, M.D.'s, opinions rendered in this case. Such suggestion
26

Case 2:03-cv-01892-ROS

-1Document 163

Filed 11/17/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

would be wholly improper, unfairly prejudicial, and is not at all supported by the record of events related to communication between the undersigned and Dr. Purdy. During Dr. Purdy's deposition, defense counsel, Jennifer Holsman, through what can only be described as deceptive questioning, improperly suggested that Plaintiff's counsel had prepared Dr. Purdy's report for her. The undersigned wrote to Dr. Purdy on August 31, 2004 and described to Dr. Purdy the procedures to be used for producing a writing of her expert opinion (EXHIBIT 1, copy of August 31, 2004 letter from Daniel B. Treon to Dr. Purdy). Unfortunately, as the deposition transcript demonstrates, Ms. Holsman took that letter and selectively parsed-out portions which she then used in her questioning of Dr. Purdy to suggest that the undersigned had drafted or "prepared" Dr. Purdy's opinion (EXHIBIT 2, copy of Dr. Purdy's deposition transcript, p. 48:16 ­ 52:8). As the Court can see from review from the entire August 31, 2004 letter to Dr. Purdy and from her testimony, Dr. Purdy dictated to the undersigned her opinion and then undersigned's office typed it up for her review and finalization. Moreover, during her deposition, the undersigned attempted to correct Ms. Holsman's misleading questions by asking Dr. Purdy if in any way the undersigned contributed to her report. Dr. Purdy, of course, confirmed that no such input had occurred (EXHIBIT 2, p. 104:25 ­ 105:9). There simply is no evidence that the undersigned "prepared" or contributed in any way to Dr. Purdy's opinions. Allowing this allegation or suggestion in evidence would reward the defense for misusing and abusing its selective use of portions of undersigned counsel's letter to the unfair prejudice of Plaintiff. Plaintiff respectfully

submits that this evidence should be excluded from trial and that Defendants should be precluded from asserting any such arguments to the jury. .... ....
Case 2:03-cv-01892-ROS

-2Document 163

Filed 11/17/2006

Page 2 of 3

1 2 3

DATED this 17th day of November, 2006. TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

CERTIFICATE OF SERVICE I hereby certify that on November 17, 2006, 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] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:

s/ Aly Shomar-Esparza

Case 2:03-cv-01892-ROS

-3Document 163

Filed 11/17/2006

Page 3 of 3