Free Motion in Limine - District Court of Arizona - Arizona

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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

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

Plaintiff moves to exclude portions of Richard Seligson, M.D.'s deposition testimony and partial medical record from trial evidence. After dislocating Teresa August's right elbow, Defendant officers transported her to the Arizona Heart Hospital. Dr. Seligson, an emergency room physician who moonlighted at the Arizona Heart Hospital, treated Mrs. August. Defendants deposed Dr. Seligson on

September 9, 2004 and Plaintiff moves to exclude from evidence the portions of his deposition testimony that lack foundation, and are speculative, hearsay or irrelevant. Case 2:03-cv-01892-ROS

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I.
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INADMISSIBLE STATEMENTS/OPINIONS BY DR. SELIGSON. Any Reference to Teresa August's Other Unrelated Medical Conditions Should be Excluded

A.

Dr. Seligson's medical record and deposition testimony include reference to Teresa August's pre-existing depression, history of heart problems, osteoarthritis and errant reference to a "right shoulder surgery for recurrent dislocations." (EXHIBIT 1, Richard

Seligson, M.D. deposition, p. 13:25 ­ 14:7; 15:20) In addition to being irrelevant, Teresa August did not have "recurrent dislocations." Approximately two years prior to the events of June 10, 2002, Mrs. August had shoulder surgery on her left shoulder, broken when she fell over her dog (EXHIBIT 2, Dr. Hartzler's medical records from 1999, left shoulder surgery). Reference to Teresa August's heart problems, osteoarthritis, depression and any other unrelated medical conditions violate Rule 403, the reference to depression is particularly prejudicial, and all these medical issues are simply irrelevant. Note, too, the source of the history referred to by Dr. Seligson was not communicated directly to him, but was found in the nursing history (EXHIBIT 1, p. 14:25 ­ 15:2), which perhaps accounts for the inaccurate medical history. B. Dr. Seligson's Speculation on Mrs. August's Susceptibility to Elbow Dislocations is Inadmissible.

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Although he was working from an inaccurate and incomplete medical history for Teresa August (Dr. Seligson did not have any of Teresa August's prior medical history other than what she was able to report despite her pain medication and pain), Defense counsel asked Dr. Seligson whether there was anything in her past medical history that could make her more susceptible to her right elbow dislocation. After noting a history of osteoarthritis involving unknown joints, Dr. Seligson then speculated about whether her osteoarthritis was severe (which is also not supported in the medical records) and whether she had osteoarthritis in her elbow. Dr. Seligson then concluded that Mrs. August's condition "may make her more susceptible to joint injuries." (EXHIBIT 1, p. 15:21 ­ 16:8; emphasis added). "Opinions merely expressing `possibilities' do not suffice to support the admissibility that Case 2:03-cv-01892-ROS

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something occurred in a particular way is not enough, as a matter of law, for a jury to find it probably happened that way." Dunn v. Sandoz Pharmaceutical Corp., 275 F.Supp.2d 672, 681 (M.D.N.C. 2003). Furthermore, the factual basis upon which the opinion rests, that Mrs. August has osteoarthritis in her right elbow, is speculative. Therefore, the opinion regarding Mrs. August's susceptibility to elbow dislocation is without foundation and must be excluded. C. Dr. Seligson Cannot Say That Teresa August Had Been Fighting at the Time of Her Arrest

One of the police officers gratuitously wrote a hearsay statement from Dr. Seligson in the police officers' departmental report. The hearsay reported a comment from Dr. Seligson, that effectively stated Dr. Seligson had seen many people in handcuffs with dislocated shoulders but never elbows and so Teresa August must have really been "fighting." In

response to questioning during his deposition, Dr. Seligson first doubted that he would have made the comment attributed to him in the officer's report. Upon further questioning, Dr. Seligson then testified that he had no specific recall of making the "really fighting" statement.

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Pressed still further by Defendants' attorney, Dr. Seligman speculated that he might have
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said something "akin to that." "I cannot imagine that they would have misquoted me totally from thin air. So I believe that I had said something akin to that, yes," (EXHIBIT 1, p. 18:14 ­ 20:1). Not only is this double hearsay, but it is a comment on the truthfulness of someone not through familiarity, but because the reporter is a police officer. Moreover, even the use of the word "fighting" inaccurately and unfairly conflicts with the Defendants' position in this case. They do not allege that Teresa August was "fighting" them, but that she struggled and resisted their efforts to cuff her. Use of this unfairly

prejudicial word alone is grounds to exclude any such comment by Dr. Seligson. This entire
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sequence of the deposition is not only hearsay, but it is highly prejudicial and therefore,
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inadmissible. Case 2:03-cv-01892-ROS

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D.
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Dr. Seligson Cannot Testify That Mrs. August's "Struggling" or "Fighting" Caused or Contributed to Her Injury.

Defendants' counsel also 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 could get while fighting a handcuffing? Object to form.

Mr. Silverman:
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A:

I would expect, yes.

(EXHIBIT 1, p. 20:2-6). Shortly thereafter, as Defendants' counsel pressed for more, Dr. Seligson realized he had overstepped his expertise both as relates his lack of medical foundation and his lack of knowledge regarding cuffing: Q: And what is the biomechanics involved in getting a medial dislocation? I could not answer that definitely, but ­ let me just stop there. I cannot answer that definitely.

A:

(EXHIBIT 1, p. 21:19 ­ 22).
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Despite this admission, Defendants then attempted to elicit an expert opinion regarding the arm bar hold, leading to this exchange: Q: A: Q: Are you familiar with what is called an arm bar hold? No. If you were to assume for me, sir, that the arm bar hold involves taking the arm, bending it at the elbow and placing it behind the back in the manner in which I am demonstrating... but if you were to assume that, and that the person is resisting that movement at the same time someone is trying to get them into that position, could that cause a medial elbow dislocation? Object to form.

Mr. Silverman: A:

I believe just thinking of the forces involved without specific knowledge, but not being a total neophyte, the answer is yes.

Case 2:03-cv-01892-ROS

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(EXHIBIT 1, p. 22:11 ­ 25) (emphasis added). Not only was Dr. Seligson unfamiliar with an arm bar hold, the jury would be left to speculate about the attorney's demonstration included in the question. Furthermore,

because Dr. Seligson lacks the "specific knowledge" to render this opinion, it is speculative and inadmissible. II. AMISSIBLE STATEMENTS/OPINIONS BY DR. SELIGSON

Although he admitted to lacking qualifications to opine regarding the mechanics and
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dynamics of the dislocation specifically of Mrs. August's elbow, Dr. Seligson indicated that he has seen approximately 6000 patients who were in police custody, and he had never seen an elbow dislocation related to a handcuffing procedure (EXHIBIT 1, p. 23:19-21, 30:3-19). Dr. Seligman is a board certified emergency physician, but even with his 30 years of experience, acknowledged the infrequency of Mrs. August's type of injury. Also, he stated that because of pain (which, as an emergency room trauma physician he does have foundation to discuss), people do not and cannot dislocate their own elbow. III. CONCLUSION

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Dr. Seligson should not be allowed to testify regarding:
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A. B. C. D.

Unrelated medical conditions; Teresa August's susceptibility to elbow dislocation; Teresa August's alleged "fighting"; and Teresa August's "fighting" as a cause of her elbow dislocation.

Dr. Seligson should be allowed to explain his observations of these kinds of injuries to people in custody, and should be allowed to testify regarding: A. The volume of his practice on the issue of infrequent occurrence of elbow dislocation and medial elbow dislocation; and Case 2:03-cv-01892-ROS

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B.
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The fact that people cannot cause their own elbow dislocation.

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

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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]

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

Case 2:03-cv-01892-ROS

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