Free Response in Support of Motion - District Court of Arizona - Arizona

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John A. Klecan, 016159 James W. Barnhouse, #013749 RENAUD COOK DRURY MESAROS, P.A. One North Central, Suite 900 Phoenix, Arizona 85004-4418 (602) 307-9900 [email protected] [email protected] Attorneys for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. Paul G. Ulrich, No. 001838 Melinda K. Cekander, No. 012085 131 E. El Caminito Drive Phoenix, Arizona 85020-3503 (602) 248-9465 [email protected] [email protected] Co-Counsel for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, individually and on behalf of MILES MIKKELSEN, JERRET MIKKELSEN and ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; and on behalf of TAYLOR R. FOX, a minor, by her next friend and natural mother, TRACY FOX-TANGA, Plaintiff, v. (Oral Argument Requested) CORRECTIONAL HEALTH RESOURCES, INC., a foreign corporation; KENNETH L. FAIVER and JANE DOE FAIVER, husband and wife; JOSEPH EDWARD RICH, M.D. and JANE DOE RICH, husband wife; DOES I through V, inclusive, Defendants. No. CIV 02-2252-PHX-JAT CORRECTIONAL HEALTH RESOURCES, INC., ET AL., REPLY IN SUPPORT OF ITS ALTERNATIVE CROSS-MOTION FOR ENFORCEMENT OF COURT'S ORDER SETTING FINAL PRETRIAL CONFERENCE AND SANCTIONS

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Defendants Correctional Health Resources, Inc., Kenneth and Rosemary Faiver, and Joseph Edward Rich, M.D. (collectively "CHR Defendants") respectfully reply in support of their Alternative Cross-Motion for Enforcement of Court's Order Setting Final Pretrial Conference and Sanctions. Plaintiffs could and should have complied with the Court's Order Setting Final Pretrial Conference by taking the minimal time necessary to review the documents and approve them. Instead, Plaintiffs spent their time preparing and filing their Motion for Enforcement of Court's Order Setting Final Pretrial Conference and Sanctions. Plaintiffs should be sanctioned. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiffs' response to CHR Defendants' cross-motion focuses on what CHR Defendants did by October 3, 2005. Plaintiffs fail to explain why they could not take the minimal time necessary to approve the joint documents on October 17, 2005. And, contrary to what Plaintiffs would have this Court believe, the joint documents could have been filed on October 17, 2005 if Plaintiffs had spent two hours or less the afternoon of October 17, 2005 conferring with defense counsel and reviewing the documents.1 All of the joint documents could have been filed on October 17, 2005 if Plaintiffs had cooperated. They would have this Court believe that it was impossible to file these documents because CHR Defendants did not provide information as quickly as Plaintiffs would have liked it.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

Of course, Plaintiffs would have been required to do whatever work was necessary the prior week, over the weekend or early on Monday morning, October 17, 2005, to respond to CHR Defendants' deposition designations and jury instructions, just as CHR Defendants had to work the prior week, over the weekend and Monday morning to respond to the constantly changing documents provided by Plaintiffs. (Exhibit B).
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Plaintiffs had all of the information they needed by October 14, 2005.2 Plaintiffs knew the substance of CHR Defendants' jurisdictional argument, having received CHR Defendants' motion on October 6, 2005. Plaintiffs had all of CHR Defendants' marked exhibits and in fact had drafted their objections to those exhibits, which were included in Plaintiffs' October 14, 2005 Final Joint Proposed Pretrial Order. (Exhibit B-4). Plaintiffs had a list of all witnesses CHR Defendants might call at trial no later than October 3, 2005. (Exhibit B to Plaintiffs Mikkelsen's Response to Defendants' Motion for Relief from Portion of Pretrial Scheduling Order Relating to Exchange of Marked Exhibits). Plaintiffs had all of CHR Defendants' deposition designations no later than October 14, 2005. (Exhibits A-13 and A-14). Plaintiffs had CHR Defendants' proposed jury instructions and objections to Plaintiffs' jury instructions and thus knew CHR Defendants' position on the claims and defenses. (Exhibit A-15). No new substantive information was contained in CHR Defendants' October 17, 2005 revisions to the joint documents, other than one objection to one of Plaintiffs' proposed voir dire questions. Despite having received all of this information, on October 14, 2005 at 8:26 p.m. Mr. Micheaels informed Mr. Barnhouse that he intended to file Plaintiffs' joint documents as they then stood. (Exhibit B-5). Mr. Micheaels indicated he did not intend to continue to work on the documents over the weekend or on October 17, 2005. (Exhibit B-5). What remained to be done between October 14, 2005 and October 17, 2005 was to incorporate into Mr. Micheaels' proposed final documents all of the information previously given to Plaintiffs by CHR Defendants. (Exhibit B). Mr. Micheaels was advised on Sunday night October 16, 2005 that the proposed final documents (incorporating information CHR Defendants previously provided

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

Plaintiffs do not dispute the fact that CHR Defendants did not receive Plaintiffs' deposition designations until October 11, 2005 at 5:03 p.m., but complain that CHR Defendants should have phoned them to ask for those designations. (Response at 4, fn.1). Similarly, Plaintiffs could have phoned to ask CHR Defendants for their designations. Plaintiffs have not submitted any evidence of such phone calls and, in fact, Mr. Barnhouse did not receive any such phone calls until October 14, 2005, at which time the deposition designations had been sent. (Exhibit B).
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Plaintiffs into the proposed final documents provided by Plaintiffs at 3:14 p.m. on October 14, 2005) would be provided on Monday, October 17, 2005. (Exhibit B-5). However, instead of cooperating to finalize these proposed final documents, Mr. Micheaels drafted his motion to enforce the order setting final pretrial conference, which he filed on October 17, 2005 at 3:15 p.m. Thus, his failure to cooperate resulted in the inability to file joint documents. If Plaintiffs had spent two hours on October 17, 2005 reviewing the documents, they would have been filed on that day, but Plaintiffs chose not to do so. To summarize: 1. No changes to the Joint Master List of Witnesses were necessary and to date, none

have been suggested by Plaintiffs. 2. Any objections to CHR Defendants' Proposed Jury Instructions could have been

made anytime by Plaintiffs after their receipt of those instructions on October 14, 2005. CHR Defendants worked over that weekend to respond to Plaintiffs' changes to their proposed jury instructions. 3. Any changes to the less than one page stipulated description of the case could

have been made in minutes. To date, Plaintiffs only deleted one phrase from that description. 4. No changes to the Joint Proposed Voir Dire Questions were necessary because

they were the questions proposed by Plaintiffs with one objection made by CHR Defendants. 5. The very minimal changes Plaintiffs made to the Joint Proposed Final Pretrial

Order responding to CHR Defendants' additions to that document could have been made in 3060 minutes. Thus, in less than two hours Plaintiffs could have had the documents completely finalized and approved as to form. Plaintiffs chose not to do so. ARGUMENT The clearest evidence that Plaintiffs could have complied with this Court's Order comes from two places: (1) a comparison of what Plaintiffs provided on October 14, 2005 with what

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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CHR Defendants filed on October 17, 2005; and (2) a comparison of what CHR Defendants filed on October 17, 2005 with Plaintiffs' suggested October 24, 2005 revisions. A. Joint Master List of Witnesses.

Contrary to Plaintiffs' contention (Response at 7), the Court did not order this document be exchanged on October 3, 2005. See September 9, 2005 Order (hereinafter "Order"). Instead, the Court ordered the task be completed by October 17, 2005. (Order). Plaintiffs had provided their final list of witnesses on October 14, 2005. (Exhibit B-3).3 CHR Defendants added the names of their anticipated witnesses. This document was sent to Mr. Micheaels at 12:06 p.m. on October 17, 2005. (A-2). Plaintiffs have not explained why they could not approve this document for joint filing. CHR Defendants cannot conceive any reason Mr. Micheaels would not approve this document for filing. B. Joint Proposed Jury Instructions.

This Court did not order this document be exchanged on October 3, 2005. (Order). CHR Defendants provided their proposed jury instructions to Mr. Micheaels on October 14, 2005. (Exhibit A-15).4 Thereafter, Mr. Micheaels substantially revised his proposed jury instructions. (Exhibit A-8). Defense counsel worked over the weekend to respond to the revisions made by Mr. Micheaels to his proposed jury instructions. (Exhibit A). Mr. Micheaels, however, failed to provide any objections to any of CHR Defendants' proposed jury instructions. (Exhibit A). Mr. Micheaels complains that he did not have time to object to CHR Defendants' proposed jury instructions because he did not receive them until October 14. (Response at 8). He claims CHR Defendants had substantially more time to review and respond to his proposed jury instructions. (Id.). What Mr. Micheaels has failed to tell this Court is that between

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Citations to any "B" exhibit refer to exhibits attached to this reply.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Citations to any "A" exhibit refer to exhibits attached to CHR's response and cross-motion.
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October 3, 2005 and October 10, 2005, he stated his clients wanted CHR to stipulate that it was vicariously liable for the conduct of Mr. Faiver and Dr. Rich for all claims (state and federal). (Exhibit B). He refused to provide any explanation for his request. (Exhibit B). Defense counsel then had to divert resources to researching the propriety of Mr. Micheaels' request. (Exhibit B).5 CHR Defendants did not have more time to review Mr. Micheaels' substantially revised set of jury instructions which were sent by e-mail at 8:26 p.m. on October 14, 2005 to defense counsel. (Exhibit A-8). At any time prior to 12:16 p.m. on October 17, 2005 (when the jury instructions were once again returned to Mr. Micheaels), Mr. Micheaels could have provided defense counsel with Plaintiffs' objections to CHR Defendants' proposed jury instructions and they would have been incorporated into the document. At any time after 12:16 p.m. on that date Mr. Micheaels could have inserted the objections into the document which had been e-mailed to him. He did not. When Mr. Micheaels finally provided objections to CHR Defendants' jury instructions, those objections were short and largely based upon motions in limine Plaintiffs filed on October 17, 2005. (Exhibit B-1). A review of those objections demonstrates they could have been completed by October 17, 2005 and inserted into the joint document if Mr. Micheaels had been so inclined. (Id.). It is clear the objections did not take any research. (Response at 8). This Court ordered that the task of preparing the joint proposed jury instructions be completed by October 17, 2005. It did not order an exchange of those documents on October

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

While Mr. Micheaels did provide his proposed jury instructions on October 3, 2005, because the attorneys responsible for the jury instructions were researching the propriety of Plaintiffs' proposed stipulation and other issues, those attorneys could not begin work on the objections to Plaintiffs' jury instructions or draft their own until October 10, 2005. Within two days they had drafted proposed jury instructions, a memorandum supporting those instructions and, objections to Plaintiffs' proposed jury instructions. Plaintiffs did not provide any jury instructions in the proper format until October 14, 2005. (Exhibit B).
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3, 2005. Plaintiffs had sufficient time to complete that joint document. They refused to do so and have provided absolutely no explanation for their refusal. C. Stipulated Description of the Case.

Contrary to Plaintiffs' contention (Response at 3), this Court did not require this document to be exchanged on October 3, 2005. Instead, the task had to be completed by October 17, 2005. (Order). Mr. Micheaels cannot be surprised that CHR Defendants did not agree with his stipulated description of the case, which sounds like his opening statement. To date, other than remove one qualifying statement inserted by CHR Defendants regarding their contention that this Court lacks jurisdiction over this matter, Mr. Micheaels has not objected in any way to the stipulated description of the case provided by CHR Defendants. (Exhibit A-10). Mr. Micheaels does not explain why he could not review and sign off on that stipulated description of the case on October 17, 2005. It was very short. He received it at 12:38 p.m. (Exhibit A-5). The one minor revision he made by October 24, 2005 could have been made in a matter of minutes on October 17, 2005. D. Joint Proposed Voir Dire Questions.

Mr. Micheaels' admission that he refused to review the documents on October 17, 2005 as they were sent one by one as they were completed is certainly proven by his argument concerning the voir dire questions. (Response at 2, 9). The voir dire document returned to Mr. Micheaels was identical to the one he sent to CHR Defendants with one objection to one voir dire question. (Compare Exhibit A-6 with B-2). He provides no explanation for his refusal to approve this document for filing. E. Joint Proposed Final Pretrial Order.

The best evidence that this document could have been timely filed comes from a comparison of three versions of this document: (1) the version sent by Mr. Micheaels at 3:14 p.m. on October 14, 2005 (Exhibit B-4); (2) the version submitted by CHR Defendants on October 17, 2005 to this Court; and (3) Mr. Micheaels' October 24, 2005 version (Exhibit A-9).

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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Plaintiffs' contested issues of fact and law; Plaintiffs' contested issues of law; Plaintiffs' list of witnesses; Plaintiffs' list of exhibits; Plaintiffs' objections to CHR Defendants' exhibits; and Plaintiffs' deposition designations were identical in the October 14, 2005 version sent by Plaintiffs to CHR Defendants and in the October 17, 2005 version submitted by CHR Defendants to this Court. (Compare Exhibit B-4 with Joint Proposed Final Pretrial Order lodged by CHR Defendants on October 17, 2005). Most telling are the additions made by Plaintiffs on October 24, 2005: 1. Plaintiffs made seven objections to various portions of the Joint Proposed Final

Pretrial Order based upon their claim that CHR Defendants did not comply with this Court's Order. (Exhibit A-9 at 3, 12-13, 23, 28, 70, 75, 86). 2. Plaintiffs removed CHR Defendants' qualifying phrase (that CHR does not admit

Plaintiffs have any valid federal claim) from CHR's admission that Ken Faiver and Dr. Rich were official policymakers for CHR with respect to any federal claims. (Exhibit A-9 at 4). 3. Plaintiffs made substantive changes to their issue number three which were not

based upon anything CHR Defendants had included. (Exhibit A-9 at 9, lines 20-25). They added additional contentions about their § 1983 claim. (Id.). 4. Plaintiffs made substantive changes to their issue number four which were not

based upon anything CHR Defendants had included. (Exhibit A-9 at 10, lines 1-22). 5. 6. Plaintiffs completely deleted their issue number seven. (Exhibit A-9 at 12). When formulating their contested issues of fact and law, CHR Defendants

referred to Plaintiffs' contested issues of fact and law for what CHR Defendants believed Plaintiffs' contentions would be with respect to CHR Defendants' contested issues of fact and law. Plaintiffs largely adopted what CHR Defendants had indicated their positions would be with respect to CHR Defendants' issues. Plaintiffs occasionally added a reference to the "Court's September 7, 2005 Order." (Exhibit A-9 at 13, lines 26-27; 14, line 14; 19, line 25). Plaintiffs also incorporated their motions in limine. (Exhibit A-9 at 14, lines 23-25; 16, lines

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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11-13). Finally, Plaintiffs incorporated their responses to CHR Defendants' motions in limine. (Exhibit A-9 at 17, lines 7-13). 7. Plaintiffs also claimed CHR Defendants failed to preserve certain issues. (Exhibit

A-9 at 19, line 15). 8. Plaintiffs made changes to their contentions with respect to their issue of law

number one. (Exhibit A-9 at 20, lines 19-20). These changes were not based upon anything CHR Defendants added, but apparently were based upon Plaintiffs' realization that their joint pre-trial contentions differed from their motions in limine. 9. Plaintiffs made changes to their contentions with respect to their issue of law

number two. (Exhibit A-9 at 21, lines 12-28). 10. Plaintiffs made one or two sentence comments following CHR Defendants'

contested issues of law. (Exhibit A-9 at 23, lines 17-18 and lines 25-28; 25, lines 15-16). Thus, the changes based upon what CHR Defendants had added were very minor. The substantive changes made by Plaintiffs were made in their issues and were not based upon anything CHR Defendants had added. Those changes appeared to have been based upon Plaintiffs' realization that they were taking inconsistent positions and their realization that they had not addressed certain issues as fully as they later believed they should have. It could not have taken more than 30-60 minutes for Plaintiffs to have added the very few changes based upon CHR Defendants' additions to the Joint Proposed Final Pretrial Order. It could have taken several hours for Plaintiffs to have considered their portions of that document and made their substantive revisions to their portions, which revisions were not based upon CHR Defendants' revisions. Plaintiffs simply refused to look at or finalize the document on October 17, 2005. They violated this Court's Order. CONCLUSION Based upon the foregoing, CHR Defendants respectfully request this Court enter its Order sanctioning Plaintiffs. The documents filed and lodged by CHR Defendants on October

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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17, 2005 should control this matter. Plaintiffs should be precluding from adding anything to or deleting anything from those documents. Because Plaintiffs refused to sign those documents, this Court should refuse to consider any portions designated as "Plaintiffs' contentions" or "Plaintiffs' jury instructions". RESPECTFULLY SUBMITTED this 11th day of November, 2005. RENAUD COOK DRURY MESAROS, PA By: s/ James W. Barnhouse John A. Klecan James W. Barnhouse Phelps Dodge Tower One North Central, Suite 900 Phoenix, AZ 85004-4418 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. PAUL G. ULRICH, PC

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By: s/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 East El Caminito Drive Phoenix, Arizona 85020-3503 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. E-Filed with the U.S. District Court this 11th day of November, 2005; and COPY of the foregoing will be delivered on the 14th day of November, 2005, to: Hon. James A. Teilborg U.S. District Court 401 West Washington Street Suite 523, SPC 51 Phoenix, Arizona 85003-0001

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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