Free Response to Motion - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc. IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 Shannon Michael Clark, 9 Plaintiff, 10 v. 11 ValueOptions, Inc., 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 By: 25 26 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Defendant ValueOptions, Inc. (?ValueOptions"), through its counsel, hereby files its Response to Plaintiff's Motion to Strike Affidavit of Robert Walters, Ph.D. This Court should deny Plaintiff's Motion since the Affidavit of Dr. Walters (?Walters Affidavit") complies with the requirements of Rule of Evidence 702, was not disclosed beyond the discovery cutoff, does not improperly advance inadmissible opinions or legal conclusions and is not based on pure conjecture and speculation. This Response is supported by the following Memorandum of Points and Authorities and the pleadings on file. DATED this 10th day of April, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. VALUEOPTIONS' RESPONSE TO PLAINTIFF'S MOTION TO STRIKE AFFIDAVIT OF ROBERT WALTERS, Ph.D. Case No. CIV 03-1344-PHX-EHC (MS)

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MEMORANDUM OF POINTS AND AUTHORITIES Factual and Procedural Posture Plaintiff filed his Motion to Strike the Affidavit of Robert Walters, Ph.D. on or about March 23, 2006 requesting that this Court strike the Walters Affidavit which was filed on October 13, 2004 as an attachment to the Statement of Facts in Support of ValueOptions' First Motion for Summary Judgment. [Doc. 58]. Plaintiff's Motion to Strike the Walters Affidavit comes approximately a year and one-half from the date the Walters Affidavit was originally filed with the Court and disclosed to Plaintiff. II. Standard Motions to strike are generally viewed with disfavor and are not frequently granted. Vassiri v. Xerox Corp., 292 F.Supp.2d 1212, 1220 (C.D. Cal. 2003). The court must view the pleading under attack in the light more favorable to the pleader. Id. Accordingly,

?motions to strike should not be granted unless it can be shown that no evidence in support
of the allegation would be admissible, or those issues could have no possible bearing on the issues in litigation." Gay-Straight Alliance Network v. Bisalia Unified School Dist., 262 F.Supp.2d 1088, 1099 (E.D. Cal. 2001). III. Argument A. Plaintiff's Motion to Strike is Untimely

A motion to strike must be filed before responding to the challenged pleading or, if no responsive pleading is permitted thereto, within twenty days after service of the challenged pleading. Rule 12(f), Fed.R.Civ.P. Plaintiff's Motion to Strike should be denied as untimely as it comes almost a year and one-half from the date the Walters Affidavit was originally filed with the Court on October 13, 2004, well beyond the twenty days allowed by Rule. Plaintiff's Motion should be denied based on the significant delay in filing.

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B.

Disclosure of the Walters Affidavit was Timely

Though Plaintiff's Motion to Strike avers that the discovery cutoff date was August 23, 2004, the actual discovery cutoff date was October 19, 2004. [Doc. 37].1 As

acknowledged by Plaintiff in his Motion to Strike, the Walters Affidavit was filed on October 13, 2004. [Doc. 58]. Plaintiff's Motion to Strike should be denied since the Walters Affidavit was filed and disclosed to Plaintiff prior to the October 19, 2004 discovery deadline. C. The Walters Affidavit is in Compliance with Rule of Evidence 702

Plaintiff's argument that the Walters Affidavit failed to comply with the requirements of Rule of Evidence 702 is simply wrong. As set forth in Daubert, Rule 702 requires two general showings for expert testimony to be admissible, which includes showing of reliability and a showing that the testimony will assist the trier of fact to understand the evidence or determine a fact in issue. Daubert v. Merrill Pharmaceuticals, Inc., 509 U.S. 579, 590-591 (1993). To be admissible, expert testimony must: (1) address an issue beyond the common the knowledge of the average layman, (2) be presented by a witness having sufficient expertise, and (3) assert a reasonable opinion given the state of the pertinent or scientific knowledge. United States v. Morales, 108 F.3d 1031, 1038 (9 th Cir. 1997). In making this determination, the District Court is accorded broad latitude in determining the reliability of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999). A cursory review of the Walters Affidavit clearly reveals that the opinions contained therein are admissible pursuant to Rule 702. It is unquestionable that the testimony of Dr. Walters, a licensed psychologist, addresses issues beyond the common knowledge of the average lay person. United States v. Vallejo, 237 F.3d 1008, 1019 (9 th Cir. 2001) (The proposed testimony of a school

See also Footnote 1 on page three of this Court's Order signed on November 28, 2005 recognizing the discovery deadline as October 19, 2004. [Doc. 175]. 3

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psychologist that addressed the special problems a special education student had in communicating was deemed beyond the common knowledge of the average lay person). Similarly, the Walters Affidavit addresses whether the assessment and determination relating to provision of seriously mentally ill (?SMI") services to Mr. Clark were appropriate, a question requiring knowledge beyond that possessed by the average lay person. Second, as a licensed psychologist Dr. Walters has sufficient expertise to express the opinions contained in his affidavit. In Olson v. Marriott International, Inc., 75 F.Supp.2d 1052, 1056 (D. Ariz. 1991), the court held that a psychologist was qualified to provide expert testimony regarding issues of sexual abuse and gender issues based on her being a licensed psychologist with experience on sexual abuse and gender issues. Similarly here, the opinions set forth in the Walters Affidavit are based upon Dr. Walters status as a licensed psychologist, his experience, his familiarity with the format and procedures utilized in the mental health field in conducting evaluations for SMI services and his knowledge of the requirements that must be met to receive SMI services through ValueOptions. Simply put, the Walters Affidavit clearly demonstrates that Dr. Walters has sufficient expertise to provide the referenced opinions. Finally, the opinions contained in the Walters Affidavit are reasonable given the state of the pertinent or scientific knowledge. Dr. Walters, relying on his education and experience, reviewed the Plaintiff's medical records and the intake assessment. Subsequently, Dr. Walters came to the conclusions set forth in the Walters Affidavit. See Vallejo, supra at 1020 (witness's degree in psychology and experience as director of special education in combination with his review of the school records qualified his opinion testimony as reliable). Similar to Vallejo, the facts of the present matter support a finding that the opinions in the Walters Affidavit are reliable. See also Olson, supra at 1056-57 (a psychologist's testimony was reliable because her opinions were drawn from her

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professional education and experience as a practicing psychologist and mental health educator). Based on the applicable standard, Plaintiff fails to meet his necessary burden since the affidavit of Dr. Walters complies with Rule of Evidence 702. D. The Affidavit Does Not Contain Inadmissible Opinions or Legal Conclusions.

Plaintiff misconstrues proper application of cases cited in the Motion to Strike to the 6 opinions contained in the Walters Affidavit. Though it is widely recognized in federal 7 courts, including the Ninth Circuit, that testimony regarding legal conclusions is improper, 8 the reach of this established rule is properly limited to the testimony regarding issues of law. 9 10 forth in the Walters Affidavit do not invade this limitation since it is also well established 11 that expert testimony concerning an ultimate issue is not per se improper. Hangarter v. 12 13 opinions, that the necessary assessment was provided and that the appropriate decision 14 denying SMI services was made, constitute improper legal conclusions. A review of the 15 Walters Affidavit and the elements of the claim advanced by Plaintiff clearly evidence that, 16 though the Walters Affidavit may contain opinions on the ultimate issues, those opinions 17 do not constitute impermissible legal conclusions. 18 E. 19 Finally, Plaintiff argues that the Walters Affidavit contains conclusory statements, 20 speculation and unsubstantiated assertions which are inadmissible. However, Plaintiff once 21 again misapplies the law to the facts. Plaintiff's argument rests precariously on his flawed 22 perception of the process by which Dr. Walters reached his opinions. Specifically, Plaintiff 23 asserts that Dr. Walters would have had to interview Plaintiff and Defendants Marshall and 24 25
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McHugh v. United Service Auto. Ass'n, 164 F.3d 451, 454 (9 th Cir. 1999). The opinions set

Providian Life and Acc. Ins. Co., 1016 (9 th Cir. 2004).2 Plaintiff argues that Dr. Walters'

The Walters Affidavit is Not Based on Conjecture or Speculation.

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Hangarter relied on Fed.R.Civ.P. 704 relating to expert testimony which states

?otherwise admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact." Hangarter, supra. 5

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Crumbley to properly support his opinions. However, Plaintiff's arguments fly in the face of applicable law. In Vallejo, the Ninth Circuit addressed this very issue upon the government's assertion that a psychologist's opinions were not admissible since the subject was not personally interviewed. Vallejo, supra at 1021. The Vallejo court, relying on the express holding of the United States Supreme Court in Daubert, recognized that prevailing law did not require that psychological or medical expert testimony be based on a personal physical examination. Id. To the contrary, opinions could be based on a review of the records alone. Id. Dr. Walters is a licensed psychologist who is personally familiar with the format for performing intake assessments and making determinations for the SMI services. He has conducted evaluations for SMI services and is personally familiar with the requirements for a person to receive SMI services through ValueOptions. Prior to setting forth his opinions in the Walters Affidavit, Dr. Walters reviewed the intake assessment and the Plaintiff's medical records. Following that review, Dr. Walters formed his opinions based on his education, experience and his review of records in this matter. Based on applicable case law, Dr. Walters' opinions are based on his personal observations and experience, not on conjecture or speculation. Plaintiff's Motion to Strike should be denied. IV. Conclusion Based on the foregoing, ValueOptions requests this Court deny the Plaintiff's Motion to Strike the Affidavit of Dr. Walters, Ph.D. DATED this 10th day of April, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. By: /s/ Brad Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc.

24 25 26 Original of the foregoing e-filed with 27 28 6

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the Clerk and Copy delivered this 10th day of April, 2006, to: The Honorable Earl H. Carroll United States District Court 401 West Washington Phoenix, AZ 85003 Copy of the foregoing mailed this 10 th day of April, 2006, to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per /s/ Brad M. Thies

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