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. (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., RESPONSE IN OPPOSITION TO PLAINTIFFS MIKKELSEN'S MOTION IN LIMINE NO. 4 TO PRECLUDE EVIDENCE OF "PRIOR BAD ACTS" OF KELLY MIKKELSEN

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 oppose Plaintiffs Mikkelsen's Motion in Limine No. 4 to preclude evidence of "prior bad acts" of Kelly Mikkelsen. 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 Evidence of Kelly Mikkelsen's conduct and pattern of conduct is directly relevant to the issue of damages. Plaintiffs' retained expert, John Buehler, issued a report stating what it would cost to raise a child. (Exhibit 1). However, that report fails to take into account whether Kelly Mikkelsen would have provided any support to his minor children. (Id.). Evidence that Kelly

Mikkelsen had a pattern of trouble with the law undercuts any notion that he would have paid a substantial portion of the cost of rearing his children. Plaintiffs' other damages expert, Skip Heck, has opined that Mr. Mikkelsen's two sons have suffered psychological and emotional injuries because they have lost their father who was a good role model for them. (Motion Exhibit B). Mr. Heck has made numerous assertions

regarding how he believes Kelly's death has affected or will affect his two sons. (Motion Exhibit B). For example, Mr. Heck opines Miles "bonded to and identified with his father as a model and someone he wanted to emulate." (Motion Exhibit B at 5). He continued to state Miles and Jerret "need a father to teach them about competition, anger, love and acceptance, and how to find a path acceptable by members of the opposite sex. Being denied the opportunity to observe their father's path to his own self-discovery, self-control, peaceful acceptance and happiness, they have lost the most important teacher of all and are left with the understanding that he died because he was bad ­ like the devil." (Motion Exhibit B at 5-6). Mr. Heck's opinions are based upon the assumption, undoubtedly fostered by Plaintiffs, that Mr. Mikkelsen could be a good role model for his sons. CHR Defendants are entitled to

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

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introduce evidence to rebut this assumption.

Mr. Mikkelsen's pattern of criminal conduct,

including his violence toward women and his inability to manage his anger certainly undercut the assumptions upon which Mr. Heck's opinion is based. Thus, the evidence is also relevant to that issue. ARGUMENT I. APPLICABLE LAW ­ STATE OR FEDERAL. As a preliminary matter, it appears that although Plaintiffs refer to FED. R. EVID . 404(b) as the basis for their request to exclude this evidence, they thereafter rely upon Arizona law to support their argument. authority. Notably absent from their motion is citation to any Ninth Circuit case

The Ninth Circuit holds that the Federal Rules of Evidence apply when they cover the

points in dispute. See Gibbs v. State Farm Mutual Insurance Company, 544 F.2d 423, 428, fn. 2 (9th Cir. 1976); cf. Prazak v. Local 1 International Union of Bricklayers & Allied Crafts, 233 F.3d 1149, 1152 (9th Cir. 2000) (generally Federal Rules of Civil Procedure govern case after its removal to federal court). The Ninth Circuit also holds "the question of whether a particular kind of evidence is admissible to prove the meaning of a contract is governed by state law." In re Sunset Bay

Associates, 944 F.2d 1503, 1515, fn. 12 (9th Cir. 1991). It is not clear whether this rule also applies in other contexts, that is, whether state law here governs the admissibility of this sort of evidence on the damages issue or whether only federal law applies. Because the Federal Rules of Evidence control this point, CHR Defendants will rely upon Ninth Circuit authority in making their response. However, because Plaintiffs rely upon state law, CHR Defendants will also address admissibility under state law. II. EVIDENCE OF KELLY MIKKELSEN'S CONDUCT IS RELEVANT AND ADMISSIBLE. A. Controlling Principles of Law.

25 The Ninth Circuit holds that evidence of a person's conduct under FED. R. EVID. 404(b) 26
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is admissible if "(1) the evidence tends to prove a material point; (2) the prior act is not too
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remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) (in cases where knowledge and intent are at issue) the act is similar to the offense charged." United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005). ARIZ. R. EVID. 404(b) is identical to the federal rule. Character evidence is not admissible to prove that a party acted in conformance with that character on a particular occasion. See Elia v. Pifer, 194 Ariz. 74, 79, ¶ 21, 977 P.2d 796, 801 (App. 1998); see also ARIZ. R. EVID. 404 advisory committee notes (character evidence "tends to distract the trier of fact from the main question of what actually happened on the particular occasion" (emphasis added); Pyeatte v. Pyeatte, 21 Ariz.App. 448, 453, 520 P.2d 542, 547 (1974) ("[E]vidence of one's character is generally inadmissible to prove his conduct on a certain occasion.") (emphasis added).. Evidence of a person's character is relevant and admissible where character is in issue. See Bell v. State of Arizona, 143 Ariz. 305, 308, 693 P.2d 960, 963 (App. 1984). "Character is in issue when a person's possession of a particular character trait is an operative fact in determining the legal rights and liabilities of the parties and thus is one of the ultimate issues in the case." Id. "For example, in a parental severance case, fitness to act as a parent is an essential element, thus permitting proof of specific acts showing unfitness." Id. In wrongful death cases, evidence "of the decedent's capacity and disposition to earn money is pertinent to the issue of damages." Kemp v. Pinal County, 8 Ariz.App. 41, 45, 442 P.2d 864, 868 (1968). Because surviving parties may recover for loss of consortium in a wrongful

death action, "decedent's character in this regard in relationship to the surviving parties is a matter in issue." Id. "Where character is in issue, as in a wrongful death action, evidence of specific

acts of the decedent bearing directly upon the trait at issue is admissible." Id.; see also Sheehan v. Pima County, 135 Ariz. 235, 239, 660 P.2d 486, 491 (App. 1982) ("[D]ecedent's characteristics and habits including his general ability, other occupations he was qualified to fulfill, his industriousness, disposition to earn, intelligence, manner of living, sobriety or

intemperance, frugality or lavishness, and other personal characteristics that are of assistance in

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

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securing business or earning money, his age and life expectancy" are all relevant in a wrongful death action). Plaintiffs also relied upon a Second Circuit opinion which holds evidence of a decedent's "personal habits and qualities are to some degree relevant considerations in determining an individual's earning ability and the support that his family would have received from him but for his death." St. Clair v. Eastern Air Lines, Inc., 279 F.2d 119, 121 (2nd Cir. 1960). Thus, evidence the decedent was diagnosed with a mental illness, engaged in excessive drinking, was known to be dishonest or irresponsible, or other such evidence is "relevant because the trier of fact may reasonably think that these traits affect the individual's ability to keep and maintain employment; it also bears on the likelihood that his funds will be used for the benefit of his family, rather than be expended in other ways." Id. B. Application of the Law to the Facts. 1. Threats to kill Tracy Fox-Tanga.

Kelly Mikkelsen threatened to kill Tracy Fox-Tanga when she raised the issue of child support for Taylor with him. (Exhibit 2 at 30-33). That threat occurred in 1995. (Id.). Ms. FoxTanga obtained a restraining order against Mr. Mikkelsen as a result of that threat. (Id.). Ms. FoxTanga thereafter obtained a court order requiring him to pay $860 per month in child support. (Id.). Neither Ms. Fox-Tanga nor her attorney had success getting regular payments from Mr. (Id.). In the year 2000 Kelly orally offered Ms. Fox-Tanga either $11,000 or (Exhibit 2 at 80). Such evidence is

Mikkelsen.

$13,000 to settle the child support he owed for Taylor.

admissible to prove Kelly's attitude toward supporting Taylor.

It also reflects his attitude

generally toward paying child support for a child where he no longer lives with that child's mother. Such evidence is relevant to rebut the unsupported assumption underlying John Buehler's report ­ that Kelly would have supported his children had he lived.

2.

Pattern of criminal conduct.

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

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The evidence Plaintiffs seek to exclude reveals that beginning in early childhood, Mr. Mikkelsen had numerous encounters with law enforcement. At the age of fifteen or sixteen, Mr. Mikkelsen was found guilty of stealing, which resulted in him being taken away from his father and put into a foster home. Criminal acts continued as Mr. Mikkelsen grew up, which included two incidents of DUI, theft, criminal trespass, and shoplifting, which resulted in more than one period of jail time. 3. Pattern of substance abuse. First it was

Most importantly, Mr. Mikkelsen's past is cluttered with substance abuse.

alcohol. At age 12, Mr. Mikkelsen began drinking. This drinking led to two DUIs and might have been a factor in his criminal history. In 1986 and 1987, Mr. Mikkelsen used and dealt cocaine. In 1991, Mr. Mikkelsen "dabbled" in

(Motion Exhibit E, Counseling Records of Nada Cox). crystal methane when he lived in Las Vegas. Id.

According to his counseling records, Mr.

Mikkelsen continued his use of crystal methane in 1995 when he stated it made him feel like Superman and that life is boring without crystal methane. Id. This use of methamphetamine

continued for many years. Given how Mr. Mikkelsen died, it is quite possible that if he stopped using alcohol and methamphetamine as his drugs of choice, he continued the pattern of substance abuse with prescription pain killers. Of course, all of this evidence relates to his ability to earn a living and support his children, as well as his life expectancy. he is a good role model for his children, as assumed by Skip Heck. 4. Problems with anger management. In March, 1997, Mr. It also relates to whether or not

Mr. Mikkelsen has also had a problem with anger management.

Mikkelsen drove onto the sidewalk in front of a Dillards and swore at the security guard because the store would not take back a pair of pants while his toddler son was in the back seat of the car. (Exhibit 3, Deposition of Rubecca Mikkelsen, at 45-46). A.R.S. § 13-2904(A)(1) ­ disorderly conduct. A month later Mr. Mikkelsen violated

On April 22, 1997, Mr. Mikkelsen threatened

suicide while he was high on methamphetamine after Ms. Mikkelsen filed for divorce. ( at 46Id.

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

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47).

A month later, Mr. Mikkelsen was arrested for threatening to harm his mechanic and told (Id.

police that he was recently addicted to methamphetamine and had a severe temper problem.

at 47-48). In 1998, Mr. Mikkelsen was arrested for public sex/indecency and sentenced to a 10day suspended jail term with one-year probation. In November, 1999 Mr. Mikkelsen verbally

assaulted Thomas Beck, who was hired to collect past due child support from Mr. Mikkelsen for his daughter, Taylor Fox. (Id. at 56). Mr. Mikkelsen threatened Mr. Beck by stating that if he

continued to call that he "would come down there and you and everybody else will be cleaning up a lot of stuff that rhymes with flood, you know of the Columbine High School aren't you Mr. Beck . . ." All of this evidence is also relevant to whether or not Mr. Mikkelsen was likely to provide support for his children (an assumption underlying Mr. Buehler's report) and whether or not he would be a good role model for his children (an assumption underlying Mr. Heck's report). 5. Domestic violence.

Mr. Mikkelsen also has had a very turbulent relationship with Rubecca, a relationship so tumultuous that since Mr. Mikkelsen's death, people have stated to Ms. Mikkelsen "it's good that Kelly died." 16, 2002). (Motion Exhibit D, Counseling records of Nancy Friends, entry dated September This relationship was so filled with violence that Jerret remembers his father "for the

fights that his father and mother had, noting, `hit at (each other) cause they say bad words." (Motion Exhibit B at 4). Over the course of their marriage, Ms. Mikkelsen filed for divorce at least twice. (Exhibit 3 at 61). The police were called or intervened in arguments on at least five occasions. The last encounter occurred while Mr. Mikkelsen was on work release from the Yuma County Adult Detention Center, and resulted in Ms. Mikkelsen obtaining an Order of Protection against Mr. Mikkelsen on August 24, 2001. Despite the Order of Protection, on or about October 1, 2001, after being served with divorce papers, Mr. Mikkelsen, while in Ms. Mikkelsen's presence, loaded his gun and said he was going to kill himself. (Motion Exhibit D, entry dated October 1, 2001).

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

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After being told about this incident, Nancy Friends advised Rubecca to continue with divorce "because children don't deserve this continued drama." (Id.). The other trauma endured by three of Mr. Mikkelsen's children was Mr. Mikkelsen's constant swearing. The constant swearing and fighting around the house caused the children to

act out. (Exhibit 4, Handwritten Letter from Rubecca to Kelly, Bates Nos. 000035 to 000039) ("The kids are absolutely horrible and you don't know what I go thru with them on a nightly basis."). In fact, during one of Miles' outbursts, he called his teacher a "bitch." (Id.). This evidence undermines Skip Heck's assumption that Kelly Mikkelsen was a good role model for his children, who would teach them how to manage anger in a way that was acceptable to the opposite sex. All of this evidence is relevant to the issue of damages. simply because it undermines Plaintiffs' experts' assumptions. It is not unfairly prejudicial

See Yauch v. Southern Pacific

Transportation Co., 198 Ariz. 394, 404, 10 P.3d 1181, 1191 (App. 2000) ("Relevant evidence generally will adversely affect the party against whom it is offered."); Lee v. Hodge, 180 Ariz. 97, 103, fn.4, 882 P.2d 408, 414 (1994) ("[N]ot all harmful evidence is unfairly prejudicial . . . evidence which is relevant and material will generally be adverse to the opponent."). The

probative value of this evidence is very high, considering its nature and the fact that Plaintiffs have placed Mr. Mikkelsen's character at issue through the testimony of their expert witnesses. CONCLUSION Based upon the foregoing, CHR Defendants respectfully request this Court deny Plaintiffs Mikkelsen's Motion in Limine No. 4 to preclude evidence of "prior bad acts" of Kelly Mikkelsen.

RESPECTFULLY SUBMITTED this 26th day of October, 2005. RENAUD COOK DRURY MESAROS, PA By: s/James W. Barnhouse
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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

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

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