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

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233 [email protected]
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.
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John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 1440 E. Missouri Avenue, #150 7 Phoenix, Arizona 85014 (602) 285-1444 8 [email protected]
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased,) 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 FOX-) ) TANGA, ) ) Plaintiffs, ) ) vs. ) C O R R E C T I O N A L H E A L T H) 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 and) wife; DOES I through V, inclusive, ) ) ) Defendants. ______________________________ ) ) )

No. CIV 02-2252-PHX-JAT PLAINTIFFS' MIKKELSEN'S RESPONSE TO DEFENDANTS' MOTION IN LIMINE TO PRECLUDE THE REPORT AND TESTIMONY OF JOHN E. BUEHLER, PH.D. CONCERNING THE PRESENT VALUE OF COST OF RAISING OF THE CHILDREN OF KELLY D. MIKKELSEN (Assigned to the Honorable James A. Teilborg)

Plaintiffs respond in opposition to Defendants' Motion in Limine to Preclude the
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expert testimony of John E. Buehler, Ph. D., concerning the cost of raising the surviving
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children of Kelly D. Mikkelsen. Dr. Buehler was retained to testify regarding the cost of raising Kelly's surviving children. Without providing Dr. Buehler's testimony to this Court, Defendants object to its introduction wholesale. Plaintiffs have attached as Exhibit A, a copy of Dr. Buehler's report, along with his CV and Plaintiffs' disclosure. Dr. Buehler is an economist, who has utilized accepted methods for calculating the cost of raising the Mikkelsen children to majority based upon reliable statistical data commonly used by other experts. He was not retained to testify as to the exact amount of damages suffered by Plaintiffs as a result of the death of Kelly Mikkelsen. Kelly's surviving family will testify concerning the contribution that Kelly Mikkelsen might have made, had he lived, and the jury will then calculate the amount of damages. Defendants argue that, absent evidence of how much or how little Kelly Mikkelsen would have contributed to supporting his children, Dr. Buehler's testimony regarding the cost of raising the children is inadmissible and speculative. Defendants rely upon one case applying Tennessee law that has nothing to do with the expenses of raising a child or the admission of expert testimony regarding damages. McLaren v. Plastic Industries, Inc., 97 F.3d 347 (9th Cir. 1996). McLaren, reviewed the support for the jury's damage award and simply recognized the rule that damages are not recoverable where the fact of damages, not the amount, is speculative. Once the fact of damages is shown, "all that an award of damages requires is substantial evidence in the record to permit a factfinder to draw reasonable inferences and make a fair and reasonable assessment of the amount of damages." 97 F.3d at 356, quoting Grantham & Mann, Inc. v. American Safety Prods, Inc., 831 F.2d 596, 601 (6th Cir. 1987). Nothing in McLaren suggests that Dr. Buehler's testimony in this case is "speculative," irrelevant, or otherwise inadmissible. Dr. Buehler is not an expert in Kelly Mikkelsen's behavior and has not attempted to estimate how much would have been paid by Kelly Mikkelsen had Kelly lived through incarceration at the Yuma County Detention Center. Dr. Buehler did, however, calculate the cost of raising Kelly's surviving children. That testimony, in conjunction with the testimony of Kelly's surviving wife and father, will enable the jurors to determine the economic loss
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sustained by the Mikkelsen children as a result of Kelly Mikkelsen's untimely death. WHEREFORE, Plaintiffs respectfully request that this Court enter an order denying Defendants' motion in limine seeking to preclude the admission of Dr. Buehler's expert testimony regarding the costs of raising Kelly Mikkelsen's surviving children.
RESPECTFULLY SUBMITTED this 25th day of October, 2005.

BEALE, MICHEAELS & SLACK, P.C.

By

/s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

CLARK & MOORE

By

/s/ John A. Micheaels (with authorization) A. James Clark 256 South Second Avenue, #E Yuma, Arizona 85364 Attorneys for Plaintiffs Miles, Jerret and Allison Mikkelsen

Original/Copy of the foregoing mailed/ delivered this 25th day of October, 2005, to:

Clerk of the U.S. District Court 401 West Washington Street 20 Phoenix, Arizona 85003 Honorable James A. Teilborg U. S. District Court 22 401 West Washington Street Phoenix, Arizona 85003
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A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, . James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004
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Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich

Michael J. Aboud Esq. ABOUD & ABOUD 100 North Stone Avenue, #303 4 Tucson, Arizona 85701 Co-Counsel for Plaintiff Fox
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Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 150 W. Second Street 7 Yuma, Arizona 85364 Co-Counsel for Plaintiff Fox
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By /s/ Sue Ketz
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