Free Response to Motion - District Court of Arizona - Arizona

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Richard T. Treon (No. 002064) TREON, AGUIRRE & NEWMAN, P.A. 2700 N. Central Avenue, Suite 1400 Phoenix, Arizona 85004-1133 Telephone: (602) 285-4400 Facsimile: (602) 285-4483 Daniel B. Treon (No. 014911) Douglas G. Shook (No. 005950) Stephen E. Silverman (No. 016757) TREON & SHOOK, P.L.L.C. 2700 N. Central Avenue, Suite 1000 Phoenix, Arizona 85004-1133 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorneys for Defendants/Counterclaimants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA AMERICAN FAMILY INSURANCE COMPANY, Plaintiff/Counterclaim Defendant, v. ROBERT and JOY DUNN, NO. CV2003-1277 PHX SRB

RESPONSE TO MOTION IN LIMINE RE MOLD

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Defendants/Counterclaimants.

The Dunns do not plan to use "inflammatory mold terms" at trial. However, their alleged evidence attached to the motion (which has never been disclosed before)

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supports the Dunns' mold-related claims. Mr. Dunn testified at his deposition that American Family's failure to fully indemnify his family (so they could take care of the mold problems) caused Joy Dunn significant stress because the Dunns have not been able to take in their home Joy's mother, who is dying but cannot live with the

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Dunns because of the mold: Q. I need to know what you're going to testify to at trial in terms of how you've been affected by the handling of the claim. It has affected us drastically. I want to explain to you that Joy's mother is dying. She has had two strokes in the last year. She's in the hospital as we speak; been there since the Fourth of July. She's going to die; it's just a matter of time. We cannot bring her to our home, because she has asthma. She can't be where there is mold.

A.
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According to the information appended to American Family's motion, the Dunns' concerns are valid. The American College of Occupational and

Environmental Medicine "Statement" reads in part: "[P]ersons with severly impaired immune function ...are at a significant risk for more severe opportunistic fungal infection." [Exhibit 1 to American Family's motion, at 1] Further, Mr. Miller's proposed opinions with respect to the dangers of mold are appropriate, and the basis of these opinions fully disclosed. In this case, Mr. Miller set forth the basis of his opinions that the American Family knew or should have known about the dangers associated with mold, and had a corresponding duty to disclose the dangers. [Dunns' June 30, 2005 Statement of Facts, Exhibit 45, § 22]

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American Family could have requested disclosure of the data underlying his opinions,
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but did not. See Fed.R.Evid. 705. In all events, American Family's previously undisclosed exhibits support Mr. Miller's testimony that "the presence of mold in a residence could present health problems to the occupants." In addition to the American College of Occupational and

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Environmental Medicine "Statement" above, the Statement also establishes: · "A growing body of literature associates a variety of diagnosable respiratory illness (asthma, wheezing, cough, phlegm, etc.), particularly in children, with residence in damage or water damaged homes"; (at 2) · Fungal infection caused by aspergillus "is without adverse health consequence unless the subject is allergic to the specific fungus that has taken up residence, in which case there may be ongoing allergic reactivity to fungal proteins released directly into the body"; (at 2) · "Individuals with allergic airway disease should take steps to minimize their exposure to molds and other airborne allergens"; (at 3) · "A very limited number of pathogenic fungi should as Blastomyces, Coccidiodes, Cryptococcus, and Histoplasma infect normal subjects and

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may cause a fatal illness"; (at 3) · "Mold growth in the home, school, or office environment should not be tolerated because mold physically destroys the building materials on which it grows, mold growth is unsightly and may produce offensive

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odors, and mold is likely to sensitize and produce allergic responses in allergic individuals." (at 7) The evidence submitted by American Family actually supports Mr. Miller's opinions. The motion in limine should be denied.

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DATED this 21st day of September, 2005. TREON, AGUIRRE & NEWMAN, P.A. By: s/Richard T. Treon Richard T. Treon, Esq. 2700 North Central Avenue, Suite 1400 Phoenix, Arizona 85004 and TREON & SHOOK, P.L.L.C. By: s/Stephen E. Silverman Daniel B. Treon Douglas Shook Stephen E. Silverman 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Attorneys for Defendants/Counterclaimants ORIGINAL of the foregoing electronically filed this 21st day of September, 2005, with: U.S. District Court Clerk

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COPY hand delivered this 21st day of September, 2005, to: The Honorable Susan R. Bolton United States District Court By: s/Barbara Bopp

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