Free Motion to Strike - 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 25 By: 26 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Defendant ValueOptions, Inc. ("ValueOptions"), through counsel, hereby moves the court to issue an order striking the Affidavit of Michael Robinson, LCSW ("Robinson Affidavit"). Though not specifically designated by plaintiff, it appears that plaintiff has attempted to improperly interject the affidavit of a purported expert. Specifically, the filing of this affidavit comes well after the deadline for discovery, is based on unreliable foundation, is irrelevant and impermissibly advances improper legal conclusions. This motion is supported by the pleadings on file, together with the following memorandum of points and authorities. DATED this 3rd day of November, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. MOTION TO STRIKE AFFIDAVIT OF MICHAEL ROBINSON, LCSW Case No. CIV 03-1344-PHX-EHC (MS)

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 As previously acknowledged by this court in its October 27, 2005 order, the deadline 4 for discovery in this case was November 18, 2004. [DKT. 157]. The Robinson Affidavit 5 was filed on October 17, 2005. [DKT. 156]. Disclosure of this purported expert witness 6 comes almost a full year after the discovery deadline established by this court of November 7 18, 2004. Similar to its denial of plaintiff's motion to reopen discovery, this court should 8 strike the Robinson Affidavit pursuant to the authority and discretion granted under Rule 9 37, Fed.R.Civ.P. 10 II. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The Affidavit Fails to Comply with Rule of Evidence 702 and Should Appropriately Be Stricken. Daubert established that the court has the task of insuring that an expert's testimony rests on both a reliable foundation and that it is relevant. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 579-80 (1993). The reliability standard is established by Rule 702's requirement that an expert's testimony pertain to "scientific...knowledge," since the adjective "scientific" implies a grounding in science's methods and procedures while the word "knowledge" connotes a body of known facts or ideas inferred from such facts or accepted as true on good grounds. Id at 580. Rule 702 also requires that the testimony "assist the trier of fact to understand the evidence or determine a fact in issue," which goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Id. It is within the discretion of the court to make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Id. The opinions contained in the Robinson Affidavit are simply not reliable as required by Daubert. In order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Id at 590. In short, the requirement that an expert's The Affidavit was Disclosed Beyond the Discovery Cutoff.

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testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability. Id. The Robinson Affidavit advances opinions including statements of the indifference demonstrated by ValueOptions' employees, alleged failures in the plaintiff's evaluation process and opinions regarding proper treatment for plaintiff. [DKT. 156]. However, the Robinson Affidavit fails to establish that Michael Robinson possesses the required "scientific knowledge" sufficient to qualify the opinions advanced. For this reason alone, the Robinson Affidavit should be stricken. Though the unreliable nature of the opinions advanced in the Robinson Affidavit is alone sufficient to strike it, Rule 702 further requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." Id at 591. This condition goes primarily to relevance and establishes that expert testimony which does not relate to an issue in the case is not relevant and, therefore, not helpful or admissible. Id. This consideration has been aptly described by federal courts as "fit", which though not always obvious, stands for the proposition that the scientific validity for one purpose is not necessarily scientific validity for other purposes. Id. As previously recognized by this court in its order of August 1, 2005, to establish liability against ValueOptions, and for the expert opinions of Michael Robinson to be relevant, plaintiff must identify not just knowledge, but "a municipal `policy' or `custom' that caused the plaintiff's injury." Com'rs of Brian County, Okl. v. Brown, 520 U.S. 397, 403 (1997). [DKT. 121]. The Robinson Affidavit is void of any such admissible opinions establishing the necessary elements of knowledge, custom or policy and should be stricken since it does not meet the relevance requirements of Rule 702. Claar v. Burlington Northern Railroad Company, 129 F.3d 499 (9 th Cir. 1994), is further instructive to application of the reliability and relevance requirements of Rule 702. In Claar, the court declared inadmissible the opinions of two of plaintiff's doctors since sufficient evidence, that their conclusions used scientific methods and procedures and that

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the conclusions were not mere subjective beliefs or unsupported speculation, was lacking. Id. The Court of Appeals ultimately upheld the decision of the trial court finding the affidavits void of any explanation of the reasoning and methods underlying the conclusions, holding that the district court could not make the findings required by Rule 702 for admissibility. Id. Similarly here, the Robinson Affidavit is lacking under Rule 702 and should be stricken. III. The Affidavit Further Improperly Advances Inadmissible Opinions on Legal Conclusions. It is widely recognized in federal courts, including the Ninth Circuit, that testimony

9 regarding a legal conclusion is improper. McHugh v. United Service Auto. Ass'n, 164 F.3d 10 11 12 13 14 the indifference of ValueOptions' employees constitute impermissible legal conclusions, 15 adding further justification for striking the Robinson Affidavit. 16 This principal specifically applied to the exclusion of expert testimony in a §1983 17 case where the court deemed inadmissible plaintiff's expert testimony. 18 Clearfield County Pennsylvania, 836 F.Supp. 1178 (W.D. Penn. 1993). In Herman, the 19 court recognized that the plaintiff must meet her burden to offer evidence showing that the 20 defendants knew or "should have known" of the decedent's suicidal intent and were 21 intentionally indifferent to that knowledge. Id at 1184. In its analysis, the court recognized 22 that the affidavit of plaintiff's expert, advancing conclusions that defendant's judgment and 23 subsequent actions were negligent, failed to establish a §1983 civil rights violation. Id at 24 1186. The court further disregarded the opinions of plaintiff's expert since, similar to this 25 case, the expert opined without establishing any factual foundation that the defendants had 26 not been adequately trained to treat the defendant's condition resulting in deliberate 27 28 4 Herman v. 451, 454 (9 th Cir. 1999); United States v. Dibble, 429 F.2d 598, 602 (9 th Cir. 1970); Aguilar v. International Longshoremens Union Local No. 10, 966 F.2d 443, 447 (9 th Cir. 1992); Marx and Co. v. Diners' Club, Inc., 559 F.2d 505, 509-510 (2 nd Cir. 1999); U.S. v. Scholl, 166 F.3d 964, 973 (9 th Cir. 1999). The opinions advanced by Michael Robinson regarding

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indifference on the part of the correctional authorities. Id. Further, the court held that this was not only an improper opinion, but also insufficient to show the deliberate indifference required to raise a question of fact as to liability on the part of the municipality. Id. Herman further supports striking the Robinson Affidavit. IV. Conclusion Based on the foregoing, ValueOptions requests that this court strike the Robinson Affidavit as it is untimely and advances inadmissible and irrelevant opinions. DATED this 3 rd day of November, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 ______________________________ Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, AZ 85734-4406 Plaintiff pro per Copy of the foregoing mailed this 3rd day of November, 2005, to: Magistrate Judge Morton Sitver United States District Court 401 West Washington Phoenix, AZ 85003 United States District Court 401 West Washington Phoenix, AZ 85003 ORIGINAL of the foregoing electronically filed this 3rd day of November, 2005 with:

/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc.

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