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. 6 TO PRECLUDE ANY ATTEMPT TO ARGUE THAT KELLY MIKKELSEN WAS COMPARATIVELY NEGLIGENT

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. 6 to preclude any attempt to argue that Kelly Mikkelsen was comparatively negligent and ask this Court to deny that motion. 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 Plaintiffs' motion suffers from two fundamental flaws. First, it is based upon the

assumption that Kelly Mikkelsen is a plaintiff in this lawsuit, citing cases setting forth rules of law applicable to plaintiffs. Neither Kelly Mikkelsen nor his estate have ever been Plaintiffs in Second, Plaintiffs fail to cite applicable

this action. Those rules of law are thus inapplicable.

Arizona authority, preferring instead to rely on cases from jurisdictions other than Arizona or even the Ninth Circuit. For both these reasons, Plaintiffs' motion is not well-taken and should be denied. ARGUMENT I. KELLY MIKKELSEN IS NOT A PLAINTIFF. The fundamental assumption underlying Plaintiffs' motion is that Kelly Mikkelsen is a plaintiff in this lawsuit and that he/his estate are bringing claims for medical malpractice on his behalf. That assumption is incorrect. themselves. Plaintiffs filed a wrongful death case seeking damages for

Neither Kelly Mikkelsen nor his estate have asserted any claims here. Neither are

plaintiffs in this action. Thus, the law cited by Plaintiffs is inapposite. Each of the cases relied upon by Plaintiffs involves a medical malpractice action asserted by the injured person or by someone on behalf of the injured person. See Harvey v. Mid-Coast

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

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Hospital, 36 F.Supp.2d 32 (D.Maine 1999)1 (medical malpractice lawsuit filed by parents on behalf of their son); Bourne v. Seventh Ward General Hospital, 546 So.2d 197 (La.App. 1989) (medical malpractice action brought by mother); Cowan v. Doering, 215 N.J.Super. 484, 522 A.2d 444 (1987) (medical malpractice action brought by patient); Whitehead v. Linkous, 404 So.2d 377 (Fla.App. 1981) (medical malpractice action brought by personal representative of estate of decedent). Similarly, Restatement (Third) Torts: Apportionment of Liability § 7 (2000) cited by Plaintiffs applies to the effect of a plaintiff's negligence. In fact, comment m to that section, quoted in part by Plaintiffs, continues to state that the "effects of that type of plaintiff's negligence [creating the condition the service was employed to remedy] on the plaintiff's recovery against other defendants and on rights of contribution and indemnity are governed by Topics 2 and 3, respectively." None of the sections in Topics 2 and 3 address this situation where the person creating the condition the service was employed to remedy is not a party to the action. None of the cited authorities discusses apportionment of fault to a third party. Thus, they provide no guidance here. Moreover, even assuming Kelly Mikkelsen (or his estate) was a party to this litigation, these cases provide no guidance here. Illustration 10, following comment m, to Restatement

(Third) Torts: Apportionment of Liability, § 7, states that where, as here, a person fails to provide accurate answers to the caregiver's questions, his fault may be considered by the factfinder. Here, Kelly Mikkelsen failed to tell CHR employees that he had consumed the vast number of Darvocet he had consumed. He only told them he had taken 3 Valium. (Exhibit 1, Notification of Charges & Rules of Violation, attached as Exhibit I D to Defendants' Consolidated Statement

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

Plaintiffs erroneously refer to this case as Dermot v. Mid-Coast Hospital. (Motion at 2). Dermot is Mr. Harvey's first name. The correct name of the case is Harvey v. Mid-Coast Hospital.
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of Facts).

Thus, even assuming this section of the Restatement applied, it would not bar

comparison of Kelly's fault here. Harvey also limits its holding to the cases in which a plaintiff has created the condition that causes the need for medical treatment. 36 F.Supp.2d at 35. It specifically notes that it is not determining whether the same rule would apply where the plaintiff fails to give the medical provider accurate information. Id. Bourne's reasoning is flawed. Although it states the factfinder cannot consider the

plaintiff's negligence in creating the condition requiring medical treatment and thus cannot find the plaintiff comparatively at fault, its analysis is based upon the doctrine of superseding and intervening cause. 546 So.2d at 203-204. It holds the physician's negligence is a superseding Id.

and intervening cause of the plaintiff's injury and thus the plaintiff cannot be found at fault.

Cowan is similarly distinguishable.

There the physicians were retained to care for the

suicidal patient. While she was under their care, the plaintiff jumped from a second-story window and was hurt. Because the physicians were retained to prevent precisely the type of harm that

occurred, the court held the plaintiff could not be found comparatively at fault. 522 A.2d at 450. That is, the physicians were retained to protect the plaintiff from herself. Although these cases are factually dissimilar for separate reasons as stated above, the bottom line remains ­ Kelly Mikkelsen and his estate are not plaintiffs. set forth in these cases do not apply here. II. ARIZONA LAW HOLDS THE JURY MAY CONSIDER KELLY MIKKELSEN'S COMPARATIVE FAULT. Notably absent from Plaintiffs' motion is citation to any Arizona authority. Federal courts Thus, the rules of law

23 apply Arizona law and rules governing naming nonparties at fault to lawsuits pending in federal 24 court. See Wester v. Crown Controls Corporation, 974 F.Supp. 1284 (D.Ariz. 1996). Under 25 Arizona law, the jury is entitled to consider Kelly Mikkelsen's fault. 26
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RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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In Hutcherson v. City of Phoenix, 192 Ariz. 51, 961 P.2d 449 (1998), the Arizona Supreme Court held the jury could compare the fault of an intentional tortfeasor with the fault of a negligent tortfeasor. There the plaintiff's decedent telephoned City of Phoenix 911 to report her concern that her former boyfriend intended to kill her and her new boyfriend. The 911

operator gave the call a low priority, told the plaintiff's decedent to call back if her former boyfriend showed up, and further told her she would send a police officer to speak to her. 192 Ariz. at 52, ¶¶ 1-6, 961 P.2d at 450. Twenty-two minutes later the decedent's former boyfriend crashed through her front window and fatally shot her and her new boyfriend. Id. at ¶ 7. The jury apportioned seventy-five percent of the fault to the City and apportioned only twenty-five percent of the fault to the shooter. 192 Ariz. at 53, ¶ 10, 961 P.2d at 451. The

appellate court ordered a new trial on apportionment of fault, stating the "evidence does not justify a verdict that the 911 operator was three times as much at fault for the wrongful deaths of Plaintiffs' decedents as [the shooter], who intentionally shot and killed Plaintiffs' decedents." Id. at ¶ 11. The Arizona Supreme Court vacated the appellate decision with respect to apportionment of fault. 192 Ariz. at 57, ¶ 37, 961 P.2d at 455. The Court explained that it would not set aside the jury's apportionment of fault, explaining the jury could have found "that an opportunity to avert this harm was lost by virtue of the operator's negligence." 192 Ariz. at 56, ¶ 26, 961 P.2d at 454. It noted the City had "accepted the obligation of attempting to prevent the very kind of

harm that occurred here." 192 Ariz. at 55, ¶ 26, 961 P.2d at 453. The Hutcherson situation is very similar to the situation here. There the City had an

obligation to protect the plaintiffs' decedents from the very harm that befell them ­ to prevent their death. The jury was instructed to apportion fault between the nonparty who caused the harm and the City who failed to prevent it. Here, Plaintiffs argue CHR Defendants had an obligation to treat Kelly Mikkelsen to prevent his death. The jury is entitled to allocate fault between the

CHR Defendants and Kelly Mikkelsen if it finds any CHR Defendant at fault.

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

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A.R.S. § 12-2506 does not distinguish between the fault of a plaintiff, a defendant, or a third-party. It authorizes the jury to apportion fault among all it finds to be at fault. A.R.S. § 122506 does not contain any exceptions to the comparative fault scheme. rejects the exception now urged by Plaintiffs. Hutcherson clearly

If, as Plaintiffs suggest, a defendant cannot ask a

factfinder to allocate fault where the defendant's role is to remedy or prevent the harm that befell the victim, certainly Hutcherson would have ordered a new trial in which the fault of the shooter could not be considered. After all, the City had a duty to prevent the very harm that befell the victims. Plaintiffs' argument thus is contrary to Arizona law. Moreover, the Arizona legislature has set forth Arizona public policy in A.R.S. § 12-711. That statute provides: In any civil action, the finder of fact may find the defendant not liable if the defendant proves that the claimant was under the influence of an intoxicating liquor or a drug and as a result of that influence the claimant was at least fifty per cent responsible for the accident or event that caused the claimant's harm. There is no exception in this statute for a case where the defendant is a health care provider and

14 the claimant is a person who has overdosed on drugs and seeks care from the health care provider 15 for that overdose. 16 public policy. 17 In sum, under Arizona law, the factfinder may consider Kelly Mikkelsen's fault. Plaintiffs' 18 motion should be denied. 19 CONCLUSION 20 Based upon the foregoing, CHR Defendants respectfully request this Court deny Plaintiffs 21 Mikkelsen's Motion in Limine No. 6 to preclude any attempt to argue that Kelly Mikkelsen was 22 comparatively negligent. 23 24 25 26
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Adopting Plaintiffs' argument would run directly contrary to this Arizona

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 s/Bobby Doisher 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

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

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