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. 7 TO PRECLUDE EVIDENCE OR ARGUMENT REGARDING THE ALLOCATION OF FAULT TO RUBECCA 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. 7 to preclude evidence or argument regarding the allocation of fault to Rubecca 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 Federal courts apply Arizona law and rules governing naming nonparties at fault to lawsuits pending in federal court. (D.Ariz. 1996). See Wester v. Crown Controls Corporation, 974 F.Supp. 1284

Plaintiffs' motion is supported by citation to only one unreported case from the

District of Arizona. (Motion at 2-3). That unpublished decision does not cite any of the pertinent Arizona case law. Thus, it has no persuasive value. Arizona courts do not elevate form over substance, as Plaintiffs ask this Court to do. For example, in Bridgestone/Firestone North America Tire, L.L.C. v. Naranjo, 206 Ariz. 447, 451, ¶ 16 fn.2, 79 P.2d 1206, 1210 (App. 2003), the court held that whether or not a party strictly complied with Ariz.R.Civ.P. 26(b)(5), requiring nonparties at fault to be identified within 150 days of the filing of the Answer, was not relevant. In so stating, it explained the purpose of the rule was to "deal with situations where the plaintiff is unaware of a nonparty's fault." Id. Arizona courts also recognize the "legislature's strong desire to ensure that comparative fault principles are applied in most cases where the actions of more than one party combine to cause harm." Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 433, 937 P.2d 353, 355 (App. 1996). The court continued to note "the comparative fault statute apportions fault, even at the

expense of the plaintiff." Id. Rosner rejected any notion that the Arizona Rules of Civil Procedure could "abridge, enlarge, or modify substantive rights created by statute." Id. It further stated, "The primary intent of the statute is to allow the trier of fact, in most cases, the jury, to apportion fault among all tortfeasors based on the facts presented at trial." Id.

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

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Here, at the time CHR answered the First Amended Complaint it had no facts to suggest that Rubecca Mikkelsen was comparatively at fault. (Exhibit 1). After CHR deposed Rubecca (Exhibit 1). Plaintiffs

on April 29, 2003, it learned she might be comparatively at fault. thereafter filed their Second Amended Complaint.

CHR understood the purpose of that Second

Amended Complaint was to delete any claim made by Rubecca Mikkelsen in her individual capacity and to add Defendants Rich and Faiver. (Exhibit 1). The Answer to that Second Amended Complaint preserved the defense that third parties over whom CHR had no control were comparatively at fault. On July 13, 2004, CHR Defendants specifically identified Rubecca

Mikkelsen as a nonparty at fault. Rubecca's status in this case with respect to comparative fault is confusing. On the one hand, she is the named plaintiff in her capacity as surviving spouse of Kelly Mikkelsen and thus authorized to bring a wrongful death claim for his surviving children and father. hand, she has not asserted a claim for herself. nonparty at fault. On the other

Thus, as to comparative fault, she is akin to a

CHR Defendants disclosed her potential fault in December, 2003 when they

filed their Answer to the Second Amended Complaint and again on July 13, 2004 when they filed a designation of non-party at fault. Plaintiffs have known for almost two years that CHR Defendants contended Rubecca is comparatively at fault. Given the Arizona policy favoring allowing the jury to consider the fault

of all tortfeasors, Plaintiffs' motion is not well-taken. Based upon the foregoing, CHR Defendants respectfully request this Court deny Plaintiffs Mikkelsen's Motion in Limine No. 7 to preclude evidence or argument regarding the allocation of fault to Rubecca 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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1 2 3 4 5 6 7 8 9 PAUL G. ULRICH, PC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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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.

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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