Free Response in Opposition to Motion - District Court of Arizona - Arizona

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William W. Drury, Jr., #005238 J. Gordon Cook, #000586 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] [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 FOXTANGA, Plaintiff, v. 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., RESPONSE IN OPPOSITION TO PLAINTIFFS MIKKELSEN'S MOTION IN LIMINE NO. 3 TO CONFIRM THIS COURT'S PRIOR RULINGS REGARDING THE EXCLUSION OF UNDISCLOSED AND/OR UNTIMELY DISCLOSED EVIDENCE (Oral Argument Requested)

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. ("CHR Defendants") respectfully respond in opposition to Plaintiffs Mikkelsen's Motion in Limine No. 3 to confirm this Court's prior rulings regarding the exclusion of undisclosed and/or untimely disclosed evidence. This response is supported by the attached

Memorandum of Points and Authorities and the Court's entire file in this matter, which are incorporated by this reference. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Dr. Gottula should be allowed to offer his opinion at trial that Nurses Kinsley and Bragan, and Ofel Diaz did not violate the standard of care. Dr. Gottula's opinion changed after August, 2004 when he (and CHR) learned for the first time that Kelly Mikkelsen ingested the fatal overdose of drugs shortly before walking back into the detention center. Dr. Gottula's revised

opinions based upon this new information were disclosed less than one month later, on September 23, 2004. (Exhibit 1). CHR Defendants had good cause for this late disclosure. They were unaware of any facts evidencing when Kelly Mikkelsen took the drug overdose. Once those facts were discovered, they immediately disclosed those facts to their expert. The expert in turn found them relevant with regard to whether CHR employees had met the standard of care. Under these circumstances, Dr. Gottula's new opinions are not a sham. Instead, they are based upon newly discovered evidence concerning when Kelly took the overdose. Prior to the Nimmo depositions, CHR Defendants had no evidence regarding when Kelly took the overdose. Thus, Dr. Gottula did not have evidence regarding that issue. Dr. Gottula's September 23, 2004 report makes it clear that the timing of the ingestion of the pills is relevant to his opinion on the standard of care. Based upon the timing of Kelly's ingestion of the pills, he would have been getting sluggish and sleepy when he returned to the jail, but his vital signs would have been normal. The full effect of the drugs would not have been felt for hours. Thus, given the information available

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

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to the nurses, as well as Kelly's appearance had he taken the drugs shortly before entering the jail, Dr. Gottula opined the nurses and Ofel Diaz did not fall below the standard of care. This Court may recall that prior to this time, the only information developed in discovery or revealed to CHR was that Kelly Mikkelsen had ingested the drugs some hours earlier, which would have made his condition upon arrival quite different. Not allowing Dr. Gottula to testify could (and most likely would) have the effect of granting a judgment in favor of Plaintiffs on the issue of breach of the standard of care. Under

such circumstances, the Ninth Circuit holds due process requires imposing the least restrictive sanction, not the most severe. United States v. Sumitomo Marine & Fire Insurance Co., 617 F.2d 1365, 1369 (9th Cir. 1980). ARGUMENT I. GOOD CAUSE EXISTS FOR THE LATE DISCLOSURE OF DR. GOTTULA'S SUPPLEMENTAL REPORT. Until August 27, 2004, CHR Defendants did not know the timing or mechanism of Kelly

14 Mikkelsen's ingestion of a lethal dose of Darvon. 15 son, Jeremy Nimmo, were deposed. 16 Mikkelsen ingested the fatal dose of Darvon just prior to returning to the detention center. 17 September 16, 2004, his son Jeremy was deposed as follow up to information learned from 18 Joseph Nimmo. 19 kinds of pills between 5:00 p.m. and 6:00 p.m. on October 11, 2001. Prior to that time, CHR 20 Defendants had only been given information that Kelly Mikkelsen had taken drugs sometime that 21 morning or at a minimum, several hours before returning to the detention center. (Exhibit 2). 22 CHR Defendants could not disclose Dr. Gottula's opinions based upon this evidence of 23 the timing of the ingestion of the Darvon before those facts were known. That is, until they had 24 the evidence, their expert could not rely upon the evidence to form his opinions. 25 Circuit has held that it is improper to dismiss a claim or exclude evidence if the failure to 26
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On August 27, 2004, Joseph Nimmo and his

CHR's counsel then learned, for the first time, that Kelly On

Jeremy described seeing Kelly Mikkelsen take large quantifies of two different

The Ninth

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

disclose is beyond the control of the party so failing.
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See Sumitomo Marine, supra; see also

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Falstaff Brewing Corporation v. Miller Brewing Company, 702 F.2d 770, 784, fn. 8 (9th Cir. 1983), and cases cited therein. In sum, Dr. Gottula could not base his standard of care opinions on evidence not known to him when he originally formed his opinions. CHR Defendants did not disclose the Nimmo

information to Dr.Gottula until after the above referenced depositions because, prior to that time, CHR Defendants did not have that information. II. DR. GOTTULA'S NEW OPINIONS ARE NOT SHAM. This Court previously found Dr. Gottula's new opinions were a sham because they contradicted his prior opinions. (September 9, 2005 Order at 10-14). To the contrary, Dr. Gottula's September 23, 2004 report links his new opinions to the new information he received. That report explains the effects the ingestion of such a large quantity of drugs would have, tying those effects to the time they would occur following ingestion. According to Dr. Gottula, the

timing of the ingestion of the drugs correlates with what Ofel Diaz described seeing and with what Nurse Bragan described seeing. Of course, if Kelly had ingested the drugs hours earlier, as was stated and known at the time Dr. Gottula first formed his opinions, his behavior and vital signs would be different from those that he would have exhibited had he ingested the drugs just shortly before returning to the detention center. Dr. Gottula's report makes this timing clear and relates

it to his new opinions regarding compliance with the standard of care. This Court previously set forth the law regarding sham affidavits. (September 9, 2005

Order at 10-14). None of those cases holds an expert's change in opinion based upon evidence not known at the time he offered the first opinion is a sham. That is precisely what happened here. Dr. Gottula learned new information about the timing of the ingestion of the drugs and, based upon that information, offered new opinions. opinions. He should be allowed to testify about those new

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

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III.

EXCLUSION OF HIS TESTIMONY VIOLATES DUE PROCESS. As stated at the outset, exclusion of evidence that prevents a party from presenting its case

violates due process.

See Sumitomo Marine, supra.

The Ninth Circuit holds the court must

consider several factors in deciding whether to exclude evidence that, in effect, grants judgment in favor of the opposing party on an issue. See Valley Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057 (9 t h Cir. 1998). This Court must consider: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the [party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Id. justified absent a finding of "willfulness, fault, or bad faith." Dismissal sanctions are rarely

Payne v. Exxon Corp, 121 F.3d

503, 507 (9th Cir. 1997). All relevant factors can be considered. See Valley Engineering, supra. Here, factors one and two favor exclusion. Valley Engineering, supra. against case-dispositive sanctions." Id. Thus, factors three and five are dispositive. Id. Plaintiffs already have an expert who will testify CHR's employees fell below the standard of care. There is no prejudice to them of allowing CHR to call its own expert to defend its employees' actions. Moreover, CHR has always offered to allow Plaintiffs to redepose Dr. Gottula at CHR's expense. (Exhibit 2). That, of course, is a lesser sanction. There is no evidence here of wilfulness, fault or bad faith, and certainly not on the part of CHR, Kenneth Faiver and/or Dr. Rich. happening with respect to discovery. There is simply no evidence they even knew what was Certainly they did not refuse to produce any piece of Factor four "cuts

evidence. Certainly they did not personally violate any court order. Yet they are being denied an opportunity to defend themselves. Due process mandates they be allowed to defend themselves.

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

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CONCLUSION Based upon the foregoing, CHR Defendants respectfully request this Court deny Plaintiffs Mikkelsen's Motion in Limine No. 3 to Confirm this Court's Prior Rulings Regarding the Exclusion of Undisclosed and/or Untimely Disclosed Evidence. RESPECTFULLY SUBMITTED this 26th day of October, 2005. RENAUD COOK DRURY MESAROS, PA By: s/James W. Barnhouse William W. Drury, Jr. 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 26th day of October, 2005; and COPY of the foregoing delivered this 26th day of October, 2005, to: Hon. James A. Teilborg U.S. District Court 401 West Washington Street Suite 523, SPC 51 Phoenix, Arizona 85003-0001

s/Bobby Doisher

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

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