Free Reply to Response to Motion - District Court of Arizona - Arizona

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233 [email protected]
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.
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John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 1440 E. Missouri Avenue, #150 7 Phoenix, Arizona 85014 (602) 285-1444 8 [email protected]
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased,) 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, ) ) Plaintiffs, ) ) vs. ) C O R R E C T I O N A L H E A L T H) 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 and) wife; DOES I through V, inclusive, ) ) ) Defendants. ______________________________ ) ) )

No. CIV 02-2252-PHX-JAT PLAINTIFFS MIKKELSEN'S REPLY IN SUPPORT OF THEIR MOTION FOR ENFORCEMENT OF COURT'S ORDER SETTING FINAL PRETRIAL CONFERENCE AND SANCTIONS AND RESPONSE TO DEFENDANTS' "ALTERNATIVE CROSS-MOTION FOR ENFORCEMENT OF COURT'S ORDER SETTING FINAL PRETRIAL CONFERENCE AND SANCTIONS"

(Assigned to the Honorable James A. Teilborg)

Plaintiffs Mikkelsen, hereby reply in support of their motion requesting enforcement
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of the Court's September 9, 2005 Order Setting Final Pretrial Conference and for sanctions
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against defendants for their failure to comply. Plaintiffs also respond in opposition to Defendants' "Alternative Cross-Motion for Enforcement of Court's Order Setting Final Pretrial Conference and Sanctions." Defendants' response begins with the implicit suggestion that Plaintiffs did not provide them with any information to prepare five documents to be filed jointly by the parties until October 14. Defendants conveniently omit the undisputed fact that Plaintiffs provided defense counsel with detailed drafts of all the joint pleadings on October 3, 2005. Defendants did not prepare any meaningful information for exchange at the mandated October 3 meeting and their subsequent failure to provide any material revisions or information until 3 hours before the filing deadline, made it impossible for the parties to file a joint proposed pre-trial order and related documents. Defendants' conduct made it impossible for Plaintiffs' counsel to review and analyze the information that should have been provided in a timely manner on and shortly after October 3, so that Plaintiffs could lay out their objections and their anticipated case for trial in the pretrial order and related documents, as contemplated by the rules of civil procedure and this Court's pretrial order. Undersigned counsel did not sign the revised versions of documents dumped on Plaintiffs' counsel on the afternoon of October 17, because there was not sufficient time to review and analyze that information, make objections, corrections, and changes in response to same, reach agreement, and get the documents filed on that date. Plaintiffs' counsel made it very clear to Mr. Barnhouse in the two weeks preceding the 17th, that Defendants could not dump all of their information on Plaintiffs on the day the joint proposed order had to be filed. Yet that is exactly what happened. Defense counsel simply did not do their pretrial preparation in a timely manner, completely preventing Plaintiffs from preparing their pretrial documentation and objections in response. Now Defendants want to blame Plaintiffs' counsel for not signing off on the documents and information dumped on Plaintiffs' counsel at the last minute. Because Defendants' conduct was unreasonable and in violation of this Court's clear orders, this Court should grant Plaintiffs' motion, deny Defendants' cross-motion, and enter an order sanctioning Defendants as set forth below.
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The Court's September 9, 2005 Order Setting Final Pretrial Conference, required that counsel for the parties meet no later than October 3 and (1) exchange properly prepared initial drafts of Joint Proposed Final Pretrial Orders, which were to include each party's list of trial exhibits (corresponding to marked trial exhibits to be exchanged at the October 3 meeting), proper lists of trial witnesses (identifying trial witnesses who shall be called, may be called and were unlikely to be called to testify at trial) and designating by page and line, deposition testimony to be read to the jury, as well as stipulated facts and the contested legal and factual issues for trial; (2) exchange each party's properly marked trial exhibits (with numbers corresponding to the trial exhibits listed on the party's draft Joint Proposed Final Pretrial Order), and; (3) exchange a draft proposed description of the case to be read to the jury. The obvious purpose of the foregoing requirements was so that at that meeting counsel for the parties could, at a minimum: (1) compare marked trial exhibits and eliminate any duplicative trial exhibits; (2) discuss which witnesses were indeed likely to be called at trial (in order that each party could begin trial preparation and have some reasonable idea about rescheduling of trial witnesses, particularly expert witnesses); (3) let each party know which deposition testimony was being designated, so that the other parties could read that designated deposition testimony, identify any admissibility objections and specify any additional portions of each such deposition to be read to the jury pursuant to Federal Rule of Civil Procedure 32(a) (4) (well in advance of the October 17 deadline for filing the Joint Proposed Final Pretrial Order), (4) begin to frame the stipulated and contested legal and factual issues for trial, and (5) have the other parties' draft proposed description of the case to be read to the jury in order to reach some agreement on the description of the case to be read to the jury well in advance of the October 17 deadline for filing the stipulated description of case to be read to the jury. That did not happen because Defendants provided no meaningful disclosure on October 3, or at any time until at least the night of Friday, October 14, but primarily on the afternoon of Monday, October 17, the date on which five "jointly" prepared documents were due.
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Defendants' suggestion that they were in full compliance with this Court's order and that undersigned was the only stumbling block to filing five important pre-trial documents that were supposed to be "jointly" prepared, is absurd. Plaintiffs urge this Court to review the documents exchanged, and not exchanged, by counsel on October 3 (Exhibits A and B to Plaintiffs' response to Defendants' motion for relief from this Court's pretrial order). A review leaves no doubt that Defendants failed to comply with the letter or the spirit of the rules or this Court's Order. Plaintiffs prepared and exchanged substantively meaningful pretrial documentation on October 3, as required by this Court's September 9 Order. Defendants did not. Plaintiffs' October 3 draft proposed joint pretrial order included such detail as realistic lists of witnesses, that Plaintiffs would, might, and would not, call at trial, and a realistic pared-down list of exhibits that actually would be used at trial. And Plaintiffs provided marked copies of those exhibits to defense counsel on October 3, as required by this Court's Order. Plaintiffs' draft pretrial order also included not only the depositions that would likely be used at trial, but also the page and line designations of deposition testimony that Plaintiffs planned to read at trial.1 Plaintiffs also gave defense counsel a case summary, a detailed list of legal and factual issues for trial, proposed jury instructions, proposed voir dire questions, and a draft case summary. In short Plaintiffs fully complied with this Court's September 9 Order. This allowed defense counsel more than adequate time to review the materials and prepare objections and suggest changes, etc. and get those back to Plaintiffs' counsel. Plaintiffs' counsel expected, and requested, that defense counsel do so promptly, so that Plaintiffs could respond and the parties could ultimately reach agreement on the five "joint"
Those page and line designations were included as Insert A to Plaintiffs' joint pretrial draft. (Plaintiffs' October 3 draft was included as Ex. A to Plaintiffs' response to Defendants' motion for relief from the Court's pretrial order.) The page and line designations were completed by Plaintiffs before counsel met on October 3, as shown by the attached document. (Attached hereto as Ex. A.) Plaintiffs believe that Insert A was, in fact, provided to defense counsel on October 3, but if defense counsel were unable to find Insert A, they had only to pick up the phone or e-mail Plaintiffs' counsel and it would have been provided immediately, since it was, in fact, previously prepared. Defendants never advised Plaintiffs that they were missing Insert A. 4 Filed 11/04/2005
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documents due on October 17 before October 17. Mr. Micheaels made it very clear to Mr. Barnhouse that he was going into another trial and that Defendants could not dump defendants' information on him at the last minute -- that he would need adequate time to review and respond to Defendants' changes and suggestions, so that the parties could reach agreement and file these documents. Unfortunately, defense counsel apparently spent two weeks reviewing, objecting and responding to Plaintiffs' materials, but did not provide any meaningful information to Plaintiffs until three hours before the documents had to be filed. In contrast to Plaintiffs' detailed drafts, Defendants' October 3 exchange added nothing to their previous disclosures ­ no true trial preparation had been done. Defendants acknowledge, as they must, that both parties were required to draft and exchange a joint Proposed Final Pretrial Order on October 3, 2005. Defendants provided a draft joint pretrial order that simply listed every document and witness ever disclosed and every deposition ever taken. (Defendants' October 3 draft was Exhibit B to Plaintiffs' response to Defendants' request for relief from this Court's order regarding pretrial preparation.) There was no attempt to identify witnesses and/or exhibits that would actually be used at trial, or designate deposition testimony to be read. The proposed "stipulated" facts started with the suggestion that Kelly Mikkelsen was a bad guy, because he was obviously a criminal, since he was in jail. According to Defendants, the issues to be litigated at trial consisted of (1) laches and (2) application of the vulnerable adult statute. Defendants did not even attempt to outline the issues presented by Plaintiffs' negligence and civil rights claims against them or any other defenses. Despite the Court's clear order to set forth contested issues of fact separately and in specific terms, outlining the contentions of each party separately, Defendants completely failed to do so. That portion of Defendants' draft quoted the sample form provided by the Court and then went into a rambling argument with no distinct issues of contested fact and no attempt to set forth the varying contentions of the parties. Other portions of Defendants' draft were simply left blank, including the statement of jurisdiction (despite the fact that Defense counsel was obviously preparing a surprise
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motion to dismiss for lack of jurisdiction, filed a few days later) and the estimated length of trial. In short, Defendants might as well have provided nothing on October 3. If Defense counsel found the contested issues of fact and law set forth clearly in Plaintiffs' draft joint proposed pretrial order "unworkable" as they now contend (because they supposedly disagree with them), then perhaps defense counsel should have provided proposed revisions in a timely manner, or better yet, they could have provided their own proposed issues of fact and law in their draft on October 3 ­ as they were ordered to do. Defendants make no attempt to explain why this information was not included in their October 3 draft, as required by this Court's Order. Defendants make no attempt to explain why this information was not provided to Plaintiffs' counsel until the afternoon of October 17, mere hours before the filing deadline. Undersigned has to wonder if Defendants are serious in their assertion (p. 9 of their response) that Plaintiffs should have known what Defendants wanted to put in the sections regarding contested issues of fact and law (and perhaps drafted revisions for defendants?) based upon the last-minute motions that Defendants filed on October 6 and the proposed jury instructions they gave to Plaintiffs on October 14. Apparently defense counsel's attitude is that it was Plaintiffs' responsibility to do all of the work in preparing the "joint" proposed pretrial order, including outlining Defendants' contentions for them. And after providing a list of every exhibit ever discovered in the case, Defendants did not provide marked copies to Plaintiffs' counsel, so that Plaintiffs' counsel could review them for objections. It is plain that, despite Mr. Barnhouse's offer to go to his office for boxes of documents, that he was not prepared to actually give marked copies to Plaintiffs' counsel on October 3, since it subsequently took two days of copying and marking to prepare some, but not all of the documents, for delivery to Plaintiffs' counsel. Instead of providing a usable list and marked copies, Defendants spent their time filing a motion for relief from this Court's clear September 9 Order requiring such disclosure, which Defendants filed on October 11. More importantly, however, it is plain that Defendants had no intention of using all of the hundreds or thousands of documents they listed on October 3, at trial.
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They simply had not bothered to do their trial preparation, and so could not, and did not, disclose to Plaintiffs those exhibits that would actually be used at trial ­ the obvious result being that Plaintiffs could not review Defendants' trial exhibits and make appropriate objections to their admissibility in a timely manner. The same is true of their witnesses. Defendants admit that they did not provide a draft joint master list of witnesses on October 3rd, and did not return Plaintiffs' October 3 draft Joint Master List of Witnesses until October 17 at 12:06 p.m. (Defendants' response at p. 4, lines 23-24.) And the list of witnesses Defendants provided in their draft proposed joint pretrial order simply listed every witness and made no attempt to indicate which witnesses would, might, or would not, be called at trial. This was not helpful information and did not comply with the letter or spirit of the rules or this Court's Order. Defendants make no effort to explain why it took them two weeks to give Plaintiffs their list of witnesses, when a list, broken down into those who would, might, and would not, be called to testify, was required to be provided on October 3. As for deposition testimony, Defendants did not designate any deposition testimony to be read until Thursday, October 13, just two working days before the joint pretrial order had to be filed, when they designated virtually all of five depositions. If that had been their only designation, it might have been possible for Plaintiffs to respond with objections and designate additional portions to be read, but Defendants apparently failed to complete their trial preparation even by the 13th. On Friday October 14, about 4:00 p.m., less than one working day before the filing deadline, Defendants e-mailed extensive/voluminous page and line designations from fourteen additional depositions, for a total of 19 depositions -- 19 depositions that had to be reviewed for objections and the page-and-line designation of additional testimony! And defense counsel do not understand why Plaintiffs' counsel could not do in one day what defendants did not do for almost two weeks. Defendants provided no explanation for their failure to provide this information as clearly required on October 3. Defendants provided no proposed jury instructions until 4:00 p.m. on Friday, October 14, at which time they also provided objections to Plaintiffs' jury instructions and a
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memorandum in support of their own. So, instead of getting proposed jury instructions to Plaintiffs counsel shortly after October 3, defense counsel spent their time secretly drafting their proposed instructions, drafting legal authority in support, and drafting objections to Plaintiffs' proposed instructions. Had Defendants provided proposed jury instructions shortly after October 3, Plaintiffs would also have had an opportunity to review the proposed instructions and make objections and provide legal authority in support of their position. But Defendants did not give Plaintiffs that opportunity. Defendants suggest that undersigned "like defense counsel" had "the entire weekend and Monday morning" to draft objections to Defendants' proposed jury instructions. The suggestion that defense counsel had the same amount of time to respond is not absurd, it is disingenuous. Plaintiffs gave defendants their proposed jury instructions on October 3 ­ two weeks earlier. Defendants provided theirs at 4:00 p.m. on Friday night, one working day before they had to be filed. If defense counsel were able to complete this important pretrial preparation in two days between the 14th and the 17th, why couldn't they have done it in the two days following receipt of Plaintiffs' information on October 3rd? Although Plaintiffs' counsel made an effort to revise Plaintiffs' proposed jury instructions in response to the information received on October 14, even emailing revisions at 8:30 p.m. on Friday night, there simply was not sufficient time for Plaintiffs' counsel to review, research, and object to Defendants' proposed jury instructions (along with everything else Plaintiffs' counsel would have had to do, such as reviewing 19 depositions and drafting defendants' portion of the joint pretrial order) by Monday afternoon. Plaintiffs gave a draft stipulated description of the case to Defendants on October 3. Again, two weeks before it had to be filed. Defendants provided nothing in response until the afternoon of the due date, just hours before the document had to be filed. How did defense counsel expect Plaintiffs' counsel to have any meaningful opportunity to review, revise, and reach a consensus on the language (along with everything else Defendants dumped on him) in that amount of time? If Plaintiffs' counsel was expected to review and revise all of Defendants' documents in a matter of hours, why did it take defense counsel two
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weeks to do so? Defendants provide no explanation for their complete failure to provide this information until hours before these documents had to be filed. Plaintiffs provided draft voir dire questions on October 3, 2005. Again, Defendants provided no response for two weeks. On the17th, again just a few hours before the filing deadline, Defendants finally provided a response. Again, Defendants expected Plaintiffs' counsel to review this information and sign off on it and agree to file it just hours after receipt. Again Defendants provided no explanation for their two-week delay in providing this information to Plaintiffs' counsel. Although Plaintiffs' counsel has worked, and will continue to work, with defense counsel to prepare for trial, undersigned counsel is currently in another trial in Globe, Arizona. That trial began on October 26th and will continue through at least November 8, 2005. Accordingly, Plaintiffs' counsel has not been able to thoroughly review and respond to the information dumped on him by defendants on the 17th. Had defendants prepared their documentation in a timely manner, and presented it on October 3, as required by this Court's order, or even shortly thereafter, Plaintiffs would have been able to review the materials, respond, and have an exchange that should, ultimately, have resulted in a completed and truly "joint" draft proposed pretrial order, voir dire questions, case description, jury instructions, and list of witnesses by the 17th. But Defendants did not do so. The Court's September 9, 2005 Order Setting Final Pretrial Conference was clear and unambiguous. The Order required counsel for both parties to prepare and exchange a draft proposed joint pretrial order on October 3. And the Order very clearly identified the information to be included and the proper form for that disclosure. This Court's Order, and even the required form of proposed joint pretrial order, make clear that information not timely disclosed in that document cannot be used at trial, except upon a showing of good cause. Yet defendants wholly failed to provide any good faith and fair dealing disclosure of the information that should have been included in Defendants' draft of the proposed joint pretrial order on October 3, 2005, or at any time thereafter, until the night of October 14 (when only the designated deposition testimony and proposed jury instructions were
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disclosed) and the afternoon of October 17, a few hours before the deadline for filing the pretrial order and other "jointly" prepared documents (when the rest of the required information was finally disclosed by Defendants). Plaintiffs provided all of the required information on October 3 and expected to get Defendants' information on that date as well. But that did not happen. Plaintiffs' counsel immediately made Mr. Barnhouse aware of his schedule and upcoming trial in Globe and the need for prompt receipt of Defendants' pre-trial information. At the October 3 meeting, undersigned specifically made defense counsel aware of the need for: (1) properly marked trial exhibits, (2) a meaningful list of trial witnesses, (3) designation of specific pages and lines of deposition testimony to be read at trial, (4) a proposed description of the case to be read to the jury, and (5) proposed jury instructions. Undersigned expressed concern on October 3, that the parties would not be able to meet the October 17 deadline unless Defendants provided that information promptly. Despite repeated attempts to get that information from defense counsel in time to reach a consensus and file joint documents by the 17th, defense counsel failed to provide any meaningful information within a reasonable time, or allow Plaintiffs' counsel a reasonable time to review that information and respond. The documents were not ready for filing on October 17, solely because defense counsel failed to provide any meaningful disclosure of virtually all of the required information until just a few hours before the documents were due. Instead of explaining why they did not provide the required information on October 3, or at any time before October 14 and 17, Defendants attacked Plaintiffs' counsel and have argued that Plaintiffs' failed to comply with this Court's September 9 Order, solely because undersigned refused to sign off on documents he had no opportunity to review, revise, and/or prepare objections to, on the afternoon of October 17. No reasonable person could have expected Plaintiffs' counsel to get all of Defendants' information on the night of Friday the 14th and the afternoon of Monday the 17th and prepare revisions and objections, etc. and get consensus in time to file five "jointly" prepared documents on the afternoon of the 17th. Indeed, the much-vaunted phone call from defense counsel at 2:35 p.m. on Monday the 17th
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was the first time that defense counsel bothered to call Plaintiffs' counsel regarding the completion and filing of these documents. At that time, Defendants still had not provided revisions to the draft proposed joint pretrial order, which Plaintiffs gave to Defendants on October 3! Those revisions were not e-mailed to undersigned until 2:52 p.m. on Monday the 17th. At 2:35 p.m., defense counsel wanted to know "What are we going to do about the joint pretrial?" There was obviously nothing that cold be done in the 1.5 hours remaining for filing. Plaintiffs complied with this Court's order, provided all the information they had two weeks before the due date, and then tried to obtain the required information from Defendants for two weeks, but it was not forthcoming. Plaintiffs respectfully request that this Court enter the following sanctions as a result of Defendants' failure to comply with this Court September 9 Order and the rules of civil procedure: 1. The Court accept the Joint Proposed Final Pretrial Order (attached at Exhibit C to Plaintiffs' motion), (a) the case proceed to trial on the issues of fact and law set forth in Section D of Exhibit C, (b) (c) (d) (e) Defendants be precluded from calling any witnesses to testify at trial, Defendants be precluded from offering any trial exhibits, Defendants be precluded from offering any deposition testimony, and Defendants be precluded from making any admissibility objections to Plaintiffs' exhibits. 2. The Court accept Plaintiffs' joint set of proposed voir dire questions (attached as Exhibit F to Plaintiffs' motion) and preclude Defendants from offering any untimely voir dire questions. 3. The Court accept Plaintiffs' joint set of proposed jury instructions (attached as Exhibit E to Plaintiffs' motion) and preclude defendants from offering any set of proposed jury instructions.
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The Court accept and read to the jury the Description of the Case to be read to the jury (attached as Exhibit D to Plaintiffs' motion).

Plaintiffs Mikkelsen respectfully submit that these requested sanctions are in

4 accordance with this Court's September 9 Order Setting Final Pretrial Conference and Rule 5 37(c). Plaintiffs Mikkelsen further submit that these sanctions are warranted given 6 Defendants' complete and continuing failure to comply with that Order. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 delivered this 4th day of November, 2005, to: 22 Clerk of the U.S. District Court 23 Phoenix, Arizona 85003

RESPECTFULLY SUBMITTED this 4th day of November, 2005.

BEALE, MICHEAELS & SLACK, P.C.

By /s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen CLARK & MOORE

By

/s/ John A. Micheaels (with authorization) A. James Clark 256 South Second Avenue, #E Yuma, Arizona 85364 Attorneys for Plaintiffs Miles, Jerret and Allison Mikkelsen

Original/Copy of the foregoing mailed/

401 West Washington Street

24 Honorable James A. Teilborg 25 401 West Washington Street

U. S. District Court

Phoenix, Arizona 85003 A. James Clark, Esq.

26 27 CLARK & MOORE

28 Yuma, Arizona 85364

256 South Second Avenue, Suite E Attorneys for Plaintiffs Rebecca Mikkelsen, et al,
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. James W. Barnhouse, Esq. 2 RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 3 Phoenix, Arizona 85004 Attorneys for Defendants Correctional 4 Health Resources, Inc., Faiver and Rich
1 5 Michael J. Aboud Esq. 6 100 North Stone Avenue, #303 7 Co-Counsel for Plaintiff Fox 8 9 BOYTE & MINORE, P.C. 10 Yuma, Arizona 85364 11 12

ABOUD & ABOUD

Tucson, Arizona 85701

Mary K. Boyte, Esq.

150 W. Second Street

Co-Counsel for Plaintiff Fox

By
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/s/ Sue Ketz

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