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. 2 TO PRECLUDE EVIDENCE OF SETTLEMENT WITH THE FORMER COUNTY DEFENDANTS, AND TO PRECLUDE ANY ARGUMENT THAT THE JURY SHOULD ASSIGN FAULT TO THE FORMER DEFENDANTS, SINCE THEY WERE NOT NAMED AS NONPARTIES AT FAULT (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 oppose Plaintiffs Mikkelsen's Motion in Limine No. 2 to preclude evidence of settlement with the former County Defendants, and to preclude any argument that the jury should assign fault to the former defendants, since they were not named as non-parties at fault, and request that the Court 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' second motion in limine places the proverbial cart before the proverbial horse. The first inquiry is whether CHR Defendants are entitled to ask the jury to assign fault to the former County Defendants. The answer to that question is resoundingly "yes." Under Arizona

law, CHR Defendants were not required to name the former County Defendants as non-parties at fault. Despite that law, and in an abundance of caution, CHR Defendants named the County Defendants as non-parties at fault even before they were dismissed from this lawsuit. The second inquiry is whether evidence that Plaintiffs previously sued the former County Defendants is admissible in the trial of this matter. The answer to this question also is resoundingly "yes." Defendants. It is clear CHR Defendants may assign fault to the former County

It is equally clear that Plaintiffs' forms of verdict and jury instructions do not Despite their protestations to the contrary, Plaintiffs are taking inconsistent

recognize that fact.

positions ­ maintaining the County was at fault in order to obtain a settlement from it and now denying that fact by seeking to exclude evidence they sued the County. Plaintiffs do not simply ask this Court to exclude evidence of the settlement. They also ask this Court to preclude anyone from mentioning the County Defendants were ever parties to this litigation. (Motion at 6). Moreover, under Henry v. HealthPartners of Southern 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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203 Ariz. 393, 55 P.3d 87 (App. 2002), there are many reasons why this evidence is admissible. Those reasons will be addressed below. ARGUMENT I. CHR DEFENDANTS ARE ENTITLED TO ASK THE JURY TO ASSIGN FAULT TO THE FORMER COUNTY DEFENDANTS. Federal courts apply Arizona law and rules governing naming nonparties at fault to lawsuits pending in federal court. See Wester v. Crown Controls Corporation, 974 F.Supp. 1284

(D.Ariz. 1996). Under Arizona law, a defendant need not name a settling codefendant as a nonparty at fault. See LyphoMed, Inc. v. Superior Court, 172 Ariz. 423, 427-428, 837 P.2d 1158, 1162-1163 (App. 1992) ("Since the hospital was a party to the action, neither the statute nor the rule required that LyphoMed had to give notice to the plaintiffs or else forfeit its right to have the hospital's fault apportioned."). Because the former County Defendants were parties to this action, CHR Defendants have the right to ask the jury to apportion fault to them. Despite the lack of any obligation to name the former County Defendants as nonparties at fault, CHR Defendants did name them as nonparties at fault (Exhibit 1) following receipt of a notice of settlement (Exhibit 2), but prior to entry of an order dismissing the former County Defendants from this action (Exhibit 3). More specifically, on March 1, 2004, the County gave notice that the claims made against it had been settled "subject to the parties' agreement on the final terms of the settlement agreement and Court approval of the minors' claims." (Exhibit 2). On July 13, 2004, CHR

Defendants then filed a "Notice of Non Party at Fault" naming the County Defendants as nonparties at fault. (Exhibit 1). This Court entered its Order dismissing the County Defendants on November 18, 2004. (Exhibit 3). Thus, although CHR Defendants were not required to name the former County Defendants as nonparties at fault, they did so. ... ...

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

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Finally, contrary to Plaintiffs' contention, CHR Defendants have listed the comparative fault of the former Yuma County Defendants as an issue in the form of joint pretrial order they filed on October 17, 2005. Thus, it has been preserved for trial. In sum, as a matter of law, CHR Defendants are entitled to ask the jury to apportion fault to the former County Defendants. II. EVIDENCE THAT THE FORMER COUNTY DEFENDANTS WERE PARTIES IS ADMISSIBLE. A. The Evidence Is Relevant and Admissible.

Evidence that Plaintiffs previously sued the former County Defendants is admissible for several reasons. See Henry, supra. First, the complaint's allegations against the former County

Defendants may be read to the jury as an admission of a party. See Henry, 203 Ariz. at 395-96, ¶¶ 6-11, 55 P.3d at 89-90. Such statements, even where made by an attorney with no personal knowledge of the matters stated therein, are admissions of a party and thus admissible. Id. at 396, ¶ 9, 55 P.3d at 90 ("We conclude, then, that Henry's factual allegations in her complaint supporting her claim that Mar [the settling former defendant] had been negligent are evidentiary admissions, albeit that they are disputed and are not in and of themselves, conclusive evidence."). Second, the statements are relevant nonhearsay. See Henry, 203 Ariz. at 396, ¶ 10, 55 P.3d at 90. CHR Defendants will not offer such statements to prove the former County

Defendants were liable, but instead to contest any claim or argument Plaintiffs might make to minimize or deny the former County Defendants' liability. Third, where, as here, the remaining defendant names a former defendant as a non-party at fault, the remaining defendant "is entitled to offer [the plaintiff's] own words in her complaint to essentially impeach her claim at trial that [the former defendant] has been, at most, minimally negligent." See Henry, 203 Ariz. at 396, ¶ 11, 55 P.3d at 90. "To rule otherwise would allow [the plaintiff] to have her proverbial cake and eat it too ­ that is, she would be permitted to reap the benefits of her allegations of negligence against [the former defendant] on the one hand, yet

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

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minimize his fault in a trial against the only remaining defendant and place all blame on [the remaining defendant] for the [decedent's] death." Id., 203 Ariz. at 396-97, ¶ 11, 55. P.3d at 9091. Fourth, to the extent Plaintiffs completely deny the former County Defendants are liable (as opposed to simply arguing they were minimally liable), such evidence is admissible under Hernandez v. State of Arizona, 203 Ariz. 196, 52 P.3d 765 (2002). There the Arizona Supreme Court held statements made in the plaintiff's notice of claim letter could be admitted (without violating the provisions of ARIZ. R. EVID. 408) to impeach her at trial where she changed her story regarding what had happened. The court explained that litigants (and their attorneys) should be held "accountable for setting forth one version of the facts to obtain a settlement and describing another version at trial." 203 Ariz. at 199, ¶ 14, 52 P.3d at 768. At a minimum, Plaintiffs here are attempting to minimize the former County Defendants' liability. At worst, Plaintiffs are attempting to deny the former County Defendants' liability.

Although they claim they will not take a different position than they have throughout this litigation (that the County Defendants are liable) (Motion at 5), their actions belie their words. Plaintiffs have omitted any reference to the County Defendants' fault in their proposed jury instructions, in their verdict forms, and in their section of the proposed pretrial order. Although they claim

CHR Defendants did not preserve this issue for trial, as shown in Section I. above, CHR Defendants (a) were not required to name the County Defendants as nonparties at fault and (b) CHR Defendants did, in fact, name the former County Defendants as nonparties at fault. Thus,

Plaintiffs' current motion, as well as their other pretrial filings, are not consistent with their current claim that they "have no intention of changing the position they have taken from the complaint onward, that the former County Defendants were negligent and that their negligence was a cause of Kelly Mikkelsen's death." (Motion at 5). ...

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

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Plaintiffs' reliance upon Dunn v. Maras, 182 Ariz. 412, 897 P.2d 714 (App. 1995), is misplaced. (Motion at 2-3). Henry rejected the very argument made by Plaintiffs here. 203

Ariz. at 397, ¶¶ 12-13, 55 P.3d at 397.

Henry explained Dunn was not controlling on the

admissibility of the fact the plaintiff had sued other defendants because Dunn focused on "the extraneous information one juror had provided the others, not the fact of settlement." at 397, ¶ 13, 55 P.3d at 397. Thus, as a matter of law, the fact that Plaintiffs previously sued the former County Defendants, as well as the allegations they made against those former County Defendants, are admissible here. CHR Defendants have no intention of introducing any evidence regarding the amount of any settlement Plaintiffs reached with the former County Defendants. CHR Defendants also have no intention of introducing evidence of the fact of settlement unless Plaintiffs, their witnesses and/or their counsel suggest the County Defendants are no longer present due to a dismissal in their favor on the merits, or a voluntary dismissal by Plaintiffs (suggesting Plaintiffs changed their minds about the County Defendants' alleged liability). If such circumstances arise during 203 Ariz.

trial, CHR Defendants will bring it to this Court's attention prior to introducing such evidence. B. The Probative Value of the Evidence Is not Outweighed by the Dangers of Unfair Prejudice, Confusion of the Issues, or Misleading the Jury.

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Admission of this evidence undoubtedly will undermine Plaintiffs' current position that the former County Defendants are not at fault and that the jury cannot apportion fault to them. However, that consequence is not "unfairly prejudicial." After all, it is the position previously The Arizona

taken by Plaintiffs to obtain a settlement from the former County Defendants. Supreme Court's explanation is instructive: Claimants should present their claims truthfully. Lawyers should of clients in presenting a claim. Allowing the use of evidence negotiations for impeachment facilitates Rule 408's goal truthfulness by putting parties on notice that they should not claims, either during compromise negotiations or at trial.

not lie on behalf from compromise of encouraging falsely represent

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

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Hernandez, 203 Ariz. at 199-200, ¶ 14, 52 P.3d at 768-69. Nothing about admission of this evidence confuses the issues or misleads the jury. of the issues to be tried is who is at fault for the death of Kelly Mikkelsen. One

Plaintiffs have

contended the County Defendants were at fault. Plaintiffs have contended CHR was at fault. CHR has contended the County Defendants were at fault. Plaintiffs' admissions that the former County Defendants were at fault do not confuse these issues or mislead the jury. To the contrary, they are relevant. That relevance is not outweighed by the dangers of unfair prejudice, confusion of the issues or misleading the jury. CONCLUSION Based upon the foregoing, CHR Defendants respectfully request this Court deny Plaintiffs Mikkelsen's Motion in Limine No. 2 to preclude evidence of settlement with the former County Defendants, and to preclude any argument that the jury should assign fault to the former defendants, since they were not named as nonparties at fault. 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.

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

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PAUL G. ULRICH, PC

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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