Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5

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

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

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. ____________________________________ I. Introduction ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' MOTION IN LIMINE NO. 3 RE: DR. BROWN'S TESTIMONY AS DEFENDANTS' MEDICAL EXPERT

21 22 23 24 25 26

Plaintiff Teresa August moves to exclude the testimony of Defendants' "independent" medical expert Stephen G. Brown, M.D. Dr. Brown is a professional witness who

transformed the independent medical examination of Mrs. August into a treating physicianpatient relationship by suggesting treatments to Mrs. August during the exam, and improperly

Case 2:03-cv-01892-ROS

-1Document 156

Filed 11/17/2006

Page 1 of 5

pressured Mrs. August by attempting to sell her supplements from his company, 4-U
1 2 3 4 5 6 7 8 9

Nutraceuticals Inc., during the examination. Defendants retained Dr. Brown as their medical expert, and on August 2, 2004 Defendants disclosed Dr. Brown's opinion regarding the prognosis for Mrs. August's dislocated elbow (EXHIBIT 1). Four months later, on December 1, 2004, Dr. Brown

conducted a purportedly independent medical examination ("IME") (EXHIBIT 2). Instead of simply proceeding through the IME in an independent, professional manner, Dr. Brown made treatment suggestions to Mrs. August and attempted to sell dietary supplements to Mrs. August and helped her joint heal.

10

Dr. Brown is the president and founder of 4-U Nutraceuticals, Inc., a company he
11 12 13 14 15 16 17 18 19 20 21 22 23

established in 2003 (EXHIBIT 3, CV Stephen G. Brown, M.D., page 3, and EXHIBIT 4, Arizona Corporation Commission corporate inquiry page for 4-U Nutraceuticals, Inc.). Dr. Brown retired from active surgical practice in 2004, although he continues working as a professional witness (EXHIBIT 5, The Orthopaedic Journal at Harvard medical School Online at page 3). According to information Zoominfo culled from 4-U Nutraceutical's now-defunct web site: In the last 10 years, Dr. Brown has devoted much of his time and energy to the study of nutritional medicine. Dr. Brown feels strongly that we have entered into the "Era of Complementary Medicine," a blend of conventional and alternative medicine. The use of nutritional and natural products as an adjunct to conventional joint treatment has been an integral part of his practice. (EXHIBIT 6, Zoominfo web page regarding Dr. Stephen G. Brown, citing www.4nutraceuticals.com/aboutus/stephen_g_brown.htm, and EXHIBIT 7, web page from www.4-

24

unutraceuticals.com/).
25 26

Case 2:03-cv-01892-ROS

-2Document 156

Filed 11/17/2006

Page 2 of 5

II.
1 2 3 4 5 6 7 8 9

Dr. Brown's Testimony Should Be Excluded.

The importance of the independence of a doctor conducting an IME pursuant to Rule 35, Federal Rules of Civil Procedure was recognized in The Italia, 27 F.Supp. 785 (E.D.N.Y. 1939). The Italia identified the physician conducting the IME as "essentially an officer of the court." Id. at 786 (citing Proceedings of American Bar Association Institute (Washington) p. 102). See also Martin v. Superior Court, 104 Ariz. 268, 451 P.2d 597 (1969) (vacating order that plaintiff submit to compulsory IME and remanding for trial court to determine bias and prejudice of physician selected by defendant). Dr. Brown's advocacy of his sideline interest during an IME, the sale of nutritional supplements as part of a treatment protocol for Mrs.

10

August, is highly inappropriate and raises serious doubts about Dr. Brown's independence.
11 12 13 14 15 16 17 18 19

(See, Dr. Brown's December 1, 2004 report, last paragraph of page 3, EXHIBIT 2, which corroborates Plaintiff's claim, as Dr. Brown wrote, "Likewise, use of chondroprotective agents may hopefully not only offer her some relief but potentially forestall the progression of posttraumatic arthritis." Chondroprotective agents are the kinds of dietary supplements intended to help age and trauma-damaged joints sold by Dr. Brown's company). Moreover, the line between treating physician and IME physician should not be blurred. In State v. Wilson, 200 Ariz. 390, 26 P.3d 1161 (App. 2001), the court held that the injured employee was not told that the physician was conducting an IME and not providing

20

treatment, and therefore the patient-physician privilege applied to what the employee told the
21 22 23 24 25 26

doctor. Here, Dr. Brown similarly crossed the line from IME doctor to treating physician when he suggested treatment to Mrs. August and attempted to sell her nutritional supplements marketed by his company, 4-U Nutraceuticals, Inc. In so doing, Dr. Brown became Mrs. August's treating physician, and she does not waive her physician-patient privilege to allow Dr. Brown to testify against her interests.

Case 2:03-cv-01892-ROS

-3Document 156

Filed 11/17/2006

Page 3 of 5

III.
1 2 3 4 5 6 7 8 9

Late Disclosure and Violation of this Court's Order

By this Court's Order, Dr. Brown's opinion was due to be disclosed on August 2, 2004. On that day, Defendants disclosed a narrative report from Dr. Brown which was simply a "record review." Dr. Brown had not examined Teresa August before rendering that report. That August 2, 2004 report, and only that signed report, has been submitted timely as part of the Defendants' compliance with Rule 26, Federal Rules of Evidence 701-705, and this Court's Pre-Trial Order. Nearly four months later, Defendants insisted that even after the deadline had passed Teresa August should submit to a physical examination by Dr. Brown, which she did. The deadline for disclosure of Dr. Brown's opinions had passed, however,

10

and so Dr. Brown should be precluded from testifying about his examination of Teresa
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

August or otherwise bolstering his timely expressed opinions with his untimely and after-thefact investigation. For the aforestated reasons, the testimony from Defendants' medical expert Stephen G. Brown, M.D. should be excluded. 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

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: [email protected]; [email protected]

26

Case 2:03-cv-01892-ROS

-4Document 156

Filed 11/17/2006

Page 4 of 5

1 2 3 4

Kathleen Wieneke: [email protected]; [email protected]; [email protected] Jennifer L. Holsman: [email protected]; [email protected]

Randall H. Warner: [email protected]; [email protected] By: s/ Aly Shomar-Esparza

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

Case 2:03-cv-01892-ROS

-5Document 156

Filed 11/17/2006

Page 5 of 5