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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
LAW OFFICES

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. 5 TO PRECLUDE EVIDENCE OF REASON THAT KELLY MIKKELSEN WAS IN JAIL

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

(Page 1, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 274

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;315964;1 Filed 10/26/2005 Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
LAW OFFICES

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. 5 to preclude evidence of the reason that Kelly Mikkelsen was in jail. 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 Not surprisingly, Plaintiffs ask this Court to enter its Order precluding CHR Defendants from introducing any evidence regarding why Kelly Mikkelsen was in jail at the time of the incident forming the basis for their complaint. According to Kelly's wife Rubecca, he was in court regarding a child support issue. (Exhibit 1, Deposition of Rubecca Mikkelsen at 59).

While in court, he threatened or intimidated the judge. (Exhibit 1 at 59). Mr. Mikkelsen pled guilty to threatening the judge. (Exhibit 1 at 61). According to

Rubecca, Mr. Mikkelsen was very angry and said "something like this is wrong, you just wait, you'll get yours; he was very angry." violating A.R.S. § Commitment). This evidence is clearly relevant to the issues raised by Plaintiffs here. The minor (Exhibit 1 at 60). Mr. Mikkelsen was committed of (Exhibit 2, Order of

13-1202(A)(1) (threatening and

intimidating).

Plaintiffs seek damages for the support they contend they would have received from Mr. Mikkelsen had he survived. Yet Mr. Mikkelsen was in jail at the time of his death because he threatened a judge when in court regarding child support issues. His statements to the judge, as well as the fact that he was in court regarding child support arrearages, rebut Plaintiffs' claim that he would willingly have provided support for his minor children. Thus, the evidence is directly relevant to Plaintiffs' claims for damages. FED. R. EVID. 401, 402. The probative nature of this evidence is not outweighed by dangers of unfair prejudice, confusion of the issues or misleading the jury. Certainly the evidence undercuts Plaintiffs' story However, the fact that

about Kelly ­ that he would have supported them without hesitation.

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

(Page 2, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 274

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;315964;1 Filed 10/26/2005 Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

evidence undercuts a party's story does not make it unfairly prejudicial.

It does not confuse the

issues or mislead the jury, but gives them additional evidence with which to assess the credibility of Plaintiffs' claim that Mr. Mikkelsen would have supported them and that but for his death they would have received the money their expert, John Buehler, opines is necessary to raise a child. The evidence should be admitted. Based upon the foregoing, CHR Defendants respectfully request this Court deny Plaintiffs Mikkelsen's Motion in Limine No. 5 to preclude evidence of the reason that Kelly Mikkelsen was in jail.

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

18 19 20 21 22 23 24 25 26
LAW OFFICES

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.

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

(Page 3, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 274

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;315964;1 Filed 10/26/2005 Page 3 of 4

1 2 3 4 5 6 7 8 s/ Bobby Doisher 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
LAW OFFICES

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

(Page 4, CIV 02-2252-PHX-JAT)

Case 2:02-cv-02252-JAT

1004.0604

Document 274

@PFDesktop\::ODMA/MHODMA/imanage;RCD_PHX;315964;1 Filed 10/26/2005 Page 4 of 4