Free Trial Brief - District Court of Arizona - Arizona

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JOSEPH C. DOLAN, ESQ. (007376) 1650 North 1st Avenue Phoenix, Arizona 85003 (602) 266-7667 Fax (602) 277-9839 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT IN AND FOR DISTRICT OF ARIZONA JERRY SIMMS, a single man, Plaintiff, vs STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation; ABC CORPORATIONS I-X; JOHN DOES I-X, Defendants. PLAINTIFF'S SUPPLEMENTAL TRIAL BRIEF RE: APPLICATION OF FRCP 26(a)(2)(B) CV-03-1415-PHX-ROS

Plaintiff hereby submits the following authority regarding the application of Federal Rule of Civil Procedure Rule 26(a)(2)(B). Plaintiff hereby responds to the supplemental trial brief filed by defendant State Farm which was filed after the February 16, 2006 pretrial conference in this matter. Plaintiff agrees that, generally, the cases say that where testimony is based upon facts and observations that were made during the course of a witness' professional involvement with the underlying facts of the case, aside from and apart from "litigation issues" a Rule 26(a)(2)(B) report is not necessary. That is the import of all of the cases cited by defendant. For example, treating physicians do not have to sign Rule 26(a)(2)(B) reports. Since they are testifying about facts and observations that came to their attention independent of their role as a "trial expert" such a report is not needed. The majority of courts agree on this topic. Witness Ron McDonald is a stucco contractor who has actually worked on plaintiff's residence and has been out on many occasions to work on the residence, both at the request of

Case 2:03-cv-01415-ROS

Document 159

Filed 04/21/2006

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plaintiff and State Farm. State Farm actually asked Mr. McDonald to prepare an estimate of the observable damage to the fascia on the east side of the main house. He has been involved in numerous aspects of the repair to the stucco system on this residence. Obviously, he has not been "fed" reports or information solely for the purpose of developing expert witness testimony. A report is not needed from Mr. McDonald under the authorities cited by defendant. Likewise, witness Ron Cope is the local representative of "Dry-vit." "Dry-vit" is the EIFS product that was utilized as the exterior finishing system on plaintiff's residence. He has never been "fed" any facts or information as to this loss. He was only contacted in his capacity as the knowledgeable spokesman for Dry-vit to provide information about the heat tolerances of the product. All of the information that would supply the basis of his testimony came to him entirely independently and long prior to even hearing about plaintiff's claim. Applying the authorities cited by defendant, a report is clearly not required from Ron Cope.

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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RESPECTFULLY SUBMITTED this 21st day of April, 2006.

By

s/Joseph C. Dolan 007376 JOSEPH C. DOLAN, ESQ. 1650 North 1st Avenue Phoenix, Arizona 85003 Attorney for Plaintiff

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 21, 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 Filing to the following CM/ECF registrants: William Phillips, Esq. BROENING OBERG WOODS & WILSON 1122 East Jefferson Phoenix, Arizona 85036 Attorneys for State Farm

I HEREBY CERTIFY that on April 21, 2006 I served the attached document by mailing a copy of the following: Hon. Roslyn Silver United States District Court, Suite 624 401 W. Washington Street Phoenix, Arizona 85003-2158

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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s/Joseph C. Dolan, Esq. 007376 Attorney

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