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' COMBINED RESPONSE TO: (1) DEFENDANTS' MOTION IN LIMINE TO PRECLUDE EVIDENCE OF AND/OR REFERENCE TO ANY AND ALL OF DR. RICH'S PAST LICENSING ISSUES, MEDICAL MALPRACTICE JUDGEMENTS OR CASES, MEDICAL BOARD SUSPENSIONS, REPRIMANDS AND PROBATIONS, PAST CRIMINAL HISTORY AND PSYCHOLOGICAL TREATMENTS; (2) DEFENDANTS' MOTION IN LIMINE TO PRECLUDE EVIDENCE OF AND/OR REFERENCE TO OFEL DIAZ'S LACK OF A NURSING LICENSE OR CERTIFICATE, AND (3) DEFENDANTS' MOTION IN LIMINE TO PRECLUDE EVIDENCE OF AND/OR REFERENCE TO CORRECTIONAL HEALTH RESOURCES, INC.'S ALLEGED FAILURE TO PROVIDE ADEQUATE AND/OR COMPETENT MEDICAL PERSONNEL

(Assigned to the Honorable James A.
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Teilborg) Plaintiffs hereby respond to (1) Defendants' Motion In Limine To Preclude Evidence Of And/Or Reference To Any And All Of Dr. Rich's Past Licensing Issues, Medical Malpractice Judgments Or Cases, Medical Board Suspensions, Reprimands, And Probations, Past Criminal History And Psychological Treatments; (2) Defendants' Motion in Limine to Preclude Evidence of and/or Reference to Ofel Diaz's Lack of a Nursing License or Certificate; and (3) Defendants' Motion in Limine to Preclude Evidence of and/or Reference to Correctional Health Resources, Inc.'s Alleged Failure to Provide Adequate and/or Competent Medical Personnel. Plaintiffs have combined their responses since all three motions require discussion of the same evidence of Defendants' failure to provide adequate and/or competent medical staffing and/or services to the Yuma County Detention Center ("YCDC") in violation of their contractual and common-law obligations to do so and in violation of Kelly Mikkelsen's civil rights. Rather than have this Court to read three duplicative responses, Plaintiffs have set forth the common factual background and argument in this one response. Plaintiffs apologize for the length, but felt that it was important to remind the Court of the huge quantities of critical evidence that Defendants seek to exclude by means of an untimely dispositive motion disguised as a motion in limine. Evidence of Dr. Rich's absolute lack of qualifications to act as the Medical Director for CHR, evidence of Defendants' knowingly hiring and misrepresenting Mr. Diaz as a qualified Certified Nursing Assistant ("CNA"), and all other evidence of Defendants' failure to provide adequate and/or competent medical personnel, is directly relevant (1) to prove Defendants' negligence, (2) to prove that Defendants' were deliberately indifferent to the rights and the medical needs of Kelly Mikkelsen and other persons detained in the Yuma County facility, and (3) to show Defendants' reckless and callous disregard for Mr. Mikkelsen's safety and Plaintiffs' entitlement to punitive damages. Accordingly, the evidence is relevant and admissible, and Defendants' motions should be denied. I. Factual Background Common to all of Defendants' Motions in Limine.

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Plaintiffs contend that Defendant CHR and Defendants Faiver and Rich, were negligent in failing to hire, train, and supervise, adequate and competent staff for the YCDC and that Defendants were deliberately indifferent to the rights and needs of Kelly Mikkelsen and other prisoners. Plaintiffs further contend that Defendants acted knowingly, and recklessly

disregarded the substantial danger of serious injury or death created by their failure to provide competent and/or adequate medical staff to provide necessary medical services. Indeed, Defendants had no intention from the outset of providing the necessary medical services, but effectively perpetrated a million-dollar fraud. All of the evidence that Defendants seek to exclude is clearly and directly relevant to support Plaintiffs' contentions1. The evidence shows that the CHR Defendants were negligent and violated Mr. Mikkelsen's 8th Amendment right to basic medical care while incarcerated by Yuma County, not only by failing and refusing to get all the information they needed to locate and treat him, by failing to assess his condition immediately upon his return, and/or by failing to treat him before his death on October 11, 2001, but also by failing to create and implement appropriate policies and procedures and by failing and refusing to provide adequate and competent/adequately-trained and/or supervised staff who could and would have assessed and treated him and prevented his death. In doing so, Defendants knew that they subjected Mr. Mikkelsen to a substantial risk of serious harm. The evidence that Defendants would like to exclude includes the following: Dr. Rich has held medical licenses in seven different states and has practiced primarily as an obstetrician. In October 1988, Dr. Rich relinquished his license in the State of Kansas, and was required by the Kansas Medical Board to move out of state after the Board filed a Petition to revoke Dr. Rich's license based on 28 separate counts against him. These counts include 20 unnecessary and inappropriate surgeries, one count of submitting false claims or payments to state and federal funds, one count of failing to diagnose a huge cystic hygroma in a patient, one count of performing unnecessary medical services on a patient, three counts of

This should have been readily apparent to Defendants when they received this Court's Order dated September 7, 2005 denying Defendants'consolidated motions for summary judgment. Case 2:02-cv-02252-JAT Document 267 3 Filed 10/25/2005 Page 3 of 17

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shoplifting, one count of medical negligence in his care of a woman who delivered a severely depressed infant, and one count of patient abandonment. According to the Kansas Medical Board, Dr. Rich's treatment of his patients failed to meet the applicable standard of care to a degree which constitutes gross negligence, was unprofessional and dishonorable conduct, was intended to deceive, defraud or harm the public, involved false or misleading statements and demonstrated a manifest incapacity or incompetence to practice medicine. (Documentation attached hereto as Ex. A.) Prior to Dr. Rich being forced to relinquish his Kansas medical license, his license was placed on restrictions after he failed to renew his license and then illegally practiced medicine without one for three months. Dr. Rich also failed to report his arrests for shoplifting on his renewal application. Id. Dr. Rich then moved to Kentucky and was granted a medical license in December 1988. Dr. Rich was arrested two more times for shoplifting in Kentucky, one of which resulted in a conviction. Dr. Rich's hospital privileges were suspended after he left the hospital to attend a party while three of his patients were in labor (two of which had been given a labor-inducing drug). While Dr. Rich was at the party, one of his patients delivered with only a nurse present. The Kentucky Medical Board investigated Dr. Rich regarding his hospital privilege suspension and found Dr. Rich's treatment of these patients to be "inexcusably negligent and constituted patient abandonment." The Kentucky Medical Board was also investigating Dr. Rich relating to his care and treatment of 13 other patients. (Documentation attached as Ex. B.) The Kentucky Medical Board issued a Letter of Reprimand and restricted Dr. Rich's license by ordering that he receive psychological counseling. (Documentation attached as Ex. C.) Dr. Rich eventually lost his Kentucky license because of an Order issued by the State of Ohio in 1996. The Ohio Medical Board reported that Dr. Rich failed to furnish complete and accurate information on his application for licensure by "publishing a false, fraudulent, deceptive or misleading statement," and his conduct was a "failure to furnish satisfactory proof of good moral character." (Documentation attached as Ex. D.) In early 1994, Dr. Rich contracted with a company called Medical-National, Inc., and worked at the Tinker Air Force Base Hospital. After a few months into this job, Medical4 Filed 10/25/2005

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National, Inc., terminated its contract with Dr. Rich after it found out Dr. Rich provided incomplete and misleading information regarding his previous licensing in Kansas and Kentucky. (Documentation attached as Ex. E.) Dr. Rich was granted his seventh medical license in the State of Tennessee in August 1995, but one of the conditions the Board placed on Dr. Rich was that he was to attend the Tennessee Medical Foundation's Impaired Physicians Program ("TMF"). On June 6, 1999, the Tennessee Medical Board placed Dr. Rich on a two-year probation because (1) he failed to remain compliant with his contract with the TMF, (2) the action taken by the Ohio Medical Board, and (3) an incident that happened wherein Dr. Rich went to Canada on vacation and left his office in the care of an 18-year-old receptionist and left her pre-signed prescription forms to fill in and give to patients (which she did for 11 patients). While on vacation, Dr. Rich also abandoned several obstetrical patients who were due to deliver near the time Dr. Rich was out of town. Dr. Rich failed to obtain coverage for these patients and failed to leave instructions with his staff. Several patients were forced to seek treatment by another physician.

(Documentation attached as Ex. F.) Dr. Rich violated the terms of the Tennessee Medical Board's June 6, 1999 Order, and on May 21, 2002, the Board ordered, among other things, that Dr. Rich continue his treatment at the TMF until December 2006. (Documentation attached as Ex. G.) In September 2002, Dr. Rich's probation was terminated, but the Board ordered Dr. Rich to "continue psychotherapy sessions as long as he is under TMF advocacy." (Documentation attached as Ex. H.) According to one of several newspaper articles published regarding Dr. Rich, the Kansas Medical Board ordered psychological counseling after a psychiatrist described Dr. Rich as "selfdestructive" and "impulsive" at times of stress. (Documentation attached as Ex. I.) Correctional Health Resources ("CHR") was the sole provider of all medical services at the Yuma County Detention Center. Article Three of CHR's Contract specifies that all health services shall be overseen by a duly licensed and accredited physician who will ensure that adequate medical staff is provided to meet the requirements as set forth in the Request for Proposal and to comply with industry standards. (August 1, 2001 contract, Ex. J.) CHR agreed
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that Dr. Rich, who lived and worked in Tennessee and never lived or worked in Arizona, would devote his "full attention" to the operation of the Detention Center's medical unit. (Contract, Ex. J; Rich deposition, Ex. K, pp. 92:3-21.) In fact, Dr. Rich devoted less than ten hours per month to supervising the Yuma County Detention Center's medical needs, and failed to participate in credentialing healthcare providers, enacting policies and procedures, and/or a mortality review following Mr. Mikkelsen's death. (Gottula deposition, Ex. L, pp. 164:19165:6, 165:6-166:6; Rich deposition, Ex. K, pp. 45:18-46:19, 48:8-10, 48:14-49:19, 50:5-17, 50:19-51:19, 53:2-22, 54:16-21.) Before Mr. Mikkelsen died on October 11, 2001, Dr. Rich had done nothing in his role as "medical director" beyond rallying the troops and having a lunch meeting with the local physician hired by Mr. Faiver to provide medical coverage for 6-7 hours per week at the Detention Center. (Gottula deposition, Ex. L, pp. 167:3-17, 168:14-16; Rich deposition, Ex. K, pp. 45:18-46:19, 48:8-10, 48:14-49:19, 50:5-17, 50:19-51:19.) On the night of Mr. Mikkelsen's death, there was no doctor and no physician's assistant at the facility. The only registered nurse on duty that night, R.N. Bragan, was only on site for up to 2 hours, and her sole responsibility was to distribute pills to inmates. (Faiver deposition, Ex. M, p. 149:3-11.) Nurse Bragan was not in charge that night. CHR designated Licensed Practical Nurse, Cheryl Kinsley, who had an 8-hour shift, to act as the "charge nurse," a position normally reserved for registered nurses. LPN's are required by Arizona law to be supervised by a physician or a registered nurse at all times. (Kinsley deposition, Ex. N, pp. 12:15-13:11.) Defendants CHR, Faiver and Rich hired a physician to work at the Detention Center only 6-7 hours per week. (Faiver deposition, Ex. M, pp. 151:3-152:19.) CHR's physician actually worked only 3-5 hours per week. (Faiver deposition, Ex. M, pp. 154:9-155:3.) CHR hired a physician's assistant to work only 30 hours per week, and the P.A. actually worked only 10-15 hours per week. (Faiver deposition, Ex. M, pp. 155:4-10, 157:11-20, 158:3-14.) Despite an obligation to provide round-the-clock coverage (168 hours per week) by at least a registered nurse, CHR, Faiver and Rich obviously failed to provide even an R.N. many hours of the day, and staffed the medical unit with a registered nurse less than 85% of the time
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even after Mr. Mikkelsen's death. (Faiver deposition, Ex. M, pp. 129:21-130:4.) Yuma County eventually terminated CHR's contract because of CHR's failure to provide adequate staffing. (Faiver deposition, Ex. M, pp. 127:5-128:2; Rich deposition, Ex. K, p. 78:9-18.) Plaintiffs' expert, Dr. Greifinger, has testified that CHR's negligence (as well as Defendants Faiver and Rich's negligence) included insufficient presence by, and inadequate round-the-clock supervision by registered nurses. (Greifinger Report [no. 2] Ex. O.) Dr. Greifinger also opined that the physician hours were insufficient, and that a jail with more than 400 inmates required at least 20 hours of physician coverage per week. (Id.) CHR also failed to provide adequate coverage by a physician's assistant. (Id.) CHR negligently failed to provide clinical oversight of its only physician and physician's assistant. (Id.) CHR's failure to train its medical staff in detention center policies and failure to have the detention center's physician conduct a mortality review of the death of Mr. Mikkelsen and/or a Mr. Gonzalez, who later hanged himself in the jail, was likewise negligent. (Id.) Dr. Greifinger also found CHR's knowing retention of an unqualified individual (Ms. Ofel Diaz) to act as a CNA fell below the required standard of care. (Id., report nos. 1-3.) CHR also failed to enact adequate policies and procedures and failed to properly train its medical staff, in violation of the applicable standard of care. (Greifinger reports, Ex. O.) Dr. Gottula, the expert retained by defendants CHR, Faiver and Rich, testified that CHR had a standard of care responsibility to provide appropriate staff to address the health care needs of the inmates, including emergent medical conditions, such as drug overdoses or intoxication. (Gottula deposition, Ex. L, pp. 41:1-9.) According to Dr. Gottula, CHR's standard of care required that CHR provide qualified doctors and healthcare professionals, proper training, proper staffing, proper supervision, and have a quality assurance program in place. (Gottula deposition, Ex. L, pp. 41:1-43:13.) Defendant Faiver likewise agreed that the applicable standard of care required CHR to provide adequate medical and nursing staff to care for the inmates, and that the staff be competent and appropriately certified, credentialed, and trained. (Faiver deposition, Ex. M, pp. 23:23-24:17, 25:12-16, 29:22-30:2.) Mr. Faiver testified that the standard of care also required
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that CHR comply with its contractual obligations. (Faiver deposition, Ex. M, p. 30:3-9.) Dr. Gottula agrees that CHR negligently failed to provide appropriate nursing assessment and appropriate care for patients with emergent medical conditions, and failed to provide such care to Mr. Mikkelsen on October 11, 2001. (Gottula deposition, Ex. L, p. 155:9-22.) Dr. Gottula specifically testified that Dr. Greifinger's opinions that CHR negligently failed to provide adequate and/or competent medical staff are reasonable opinions. (Gottula deposition, Ex. L, pp. 159:11-163:1.) Dr. Gottula clearly testified that CHR breached the standard of care in hiring Ofel Diaz and holding her out as a CNA when she was not. (Gottula deposition, Ex. L, pp. 59:20-65:11.) According to Dr. Gottula, CHR should also have provided training for its employees in, at a minimum, policies and procedures applicable to the Detention Center, but failed to do so. (Gottula deposition, Ex. L, pp. 66:1-22, 71:11-74:5, 74:25-80:17.) Such failure was a breach of the standard of care. (Gottula deposition, Ex. L, pp. 77:25-79:1.) Dr. Gottula also agreed that Dr. Rich's failure to devote his full attention to the Yuma County medical unit "did not meet the standard of care" required of Dr. Rich as CHR's corporate medical director. (Gottula deposition, Ex. L, pp. 167:3-17, 168:14-16, 168:23169:21.) Dr. Gottula agreed that scheduling a doctor for the facility for less than 6 hours per week was insufficient to provide adequate medical care at the Detention Center and was substandard. (Gottula deposition, Ex. L, p. 172:11-20.) And that defendants Faiver, Rich, and CHR were negligent in failing to provide adequate staffing. (Gottula deposition, Ex. L, pp. 167:3-17, 168:14-16, 168:23-170:19.) II. All of the Foregoing Evidence is Relevant and Admissible. All of the foregoing evidence (and more that could not be included above) is critical evidence of the Defendants' negligent failure to provide adequate and/or competent staff, as well as Defendants' deliberate indifference to, and knowing and reckless disregard for, Kelly Mikkelsen's health and safety, which conduct ultimately resulted in the death of Kelly Mikkelsen. CHR's deliberate deviations from its contract obligations and the standard of care were
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neither accidents nor oversights. Dr. Rich, the supposed "Medical Director" of CHR, was incompetent and no reasonable correctional health provider would ever have hired him to act a Medical Director for a detention facility given his lack of experience and incompetence. Likewise, no reasonable correctional facility - in this case Yuma County - would never have hired CHR to be the sole provider of health care services for the Yuma Correctional Detention Center if it were made aware of Dr. Rich's lack of experience and incompetence. But Dr. Rich's history of incompetence and neglect was not disclosed to Yuma County by Defendants. And Dr. Rich did nothing in his capacity as "Medical Director"­ no training, no supervision, nothing, to supervise the medical department. Indeed, Dr. Rich never even lived in Arizona, so was never in a position to provide any meaningful supervision. The employment contracts of Dr. Babiker and Mr. Linde, (not to mention the intentional employment and holding-out of Ms. Diaz as a "CNA") attest to Defendants' willful and purposeful decision to provide far less medical service than was required by CHR's contract and by the applicable common-law standards of care. The relevance of the evidence is clearly established by relevant case law. Understaffing, inadequate training, and other systemic deficiencies may provide a basis for Eighth Amendment liability, not only for policy makers such as Defendants Faiver and Rich, but also for CHR as an entity. Ginest v. Board of County Commissioners of Carbon County, 333 F. Supp. 1190, 1198, 1204 (D. Wyo. 2004), citing Board of County Commissioners v. Brown, 520 U.S. 397, 403-04 117 S.Ct. 1382 (1997) (reaffirming that a municipality may be held liable for deprivations resulting from those officials whose acts may fairly be said to be those of the municipality); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) cert. denied, 450 U.S. 1041, 101 S. Ct. 1759 (1981). Systemic and longstanding inadequacies create such a high risk of future injury that deliberate indifference must be inferred. Ginest, citing Farmer v. Brennan; Todaro v. Ward, 565 F.2d 48, 52 (2nd Cir. 1977); Skinner v. Uphoff, 234 F. Supp. 2d 1208, 1215-16 (D. Wyo. 2002). In Ginest, for example, the court held that a county could be liable for violation of prisoners' Eighth Amendment right to medical care based on the county sheriff's failure to
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properly train and staff the county jail to provide for prisoners' medical needs. Ginest, 333 F. Supp. 1190, 1207. The inadequacies included inadequate record keeping, inadequate

training/policies/procedures for suicide prevention, failing to have a doctor readily available or a procedure for taking prisoners to a hospital E.R., etc. Ginest, 333 F. Supp. 1190, 1207-08. Accordingly, CHR may be liable for violation of Mr. Mikkelsen's Eighth Amendment right to receive medical care based on CHR's failure to adequately staff the medical department, its failure to have or follow policies and procedures for the prevention of suicide, and/or its failure to adequately train its medical staff. Defendants' own expert, Dr. Gottula, agreed that CHR's knowing failure to hire adequate and competent staff as required by the standard of care and its contract with Yuma County was not only negligent, but also evidence of deliberate indifference to the welfare of inmates such as Mr. Mikkelsen. (Gottula deposition, Ex. L, pp. 88:25-91:12, 159:11-163:1, 163:22-164:11, 164:19-165:6, 167:3-17, 168:14-16, 168:23-170:19, 172:22-173:12.) Specifically, Dr. Gottula testified that hiring and holding out Ofel Diaz as a CNA was deliberately indifferent, that representing that Dr. Rich would devote his "full attention" to the YCDC with no intention of doing so would be deliberately indifferent, and that contracting with staff for fewer hours than Defendants had agreed to provide would be deliberately indifferent. Id. It should be clear that evidence that (1) Dr. Rich was grossly unqualified to hold the supposedly full-time position of Medical Director for the YCDC; (2) Defendants knowingly held out Ofel Diaz as a Certified Nursing Assistant, when she was not, and; (3) Defendants knowingly and intentionally failed to provide adequate or competent staff, is relevant to show that Defendants' failure to comply with their common-law and contractual obligations was not only negligent, but deliberately indifferent and demonstrates knowing and reckless disregard for the safety of the YCDC inmates including Kelly Mikkelsen. III. Additional Response to Defendants' Motion in Limine Regarding Defendants' Failure to provide adequate and/or competent medical personnel. A motion in limine is intended to prevent prejudice at trial that might be caused by the

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inadvertent admission of inadmissible evidence. Hess v. Inland Asphalt Co., 1990-1Trade Cas.
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(CCH) P68, 954 (E.D. Wash. 1990).
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Defendants' supposed "motion in limine" asking this
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Court to exclude all evidence or argument on Plaintiffs' claim for negligent failure to provide adequate or competent medical staffing of the YCDC is not a proper motion in limine. Defendants' motion effectively seeks partial summary judgment on Plaintiff's negligent staffing claim based on an alleged lack of evidence of causation. Indeed, it is the same argument that Defendants made in response to Plaintiffs' motion for partial summary judgment on inadequate staffing and in Defendants' motion for partial summary judgment on Plaintiffs' section 1983 claim, which motion was denied by this Court. (This Court's 9/7/5 Order, pp. 23:14-21, 36:719.) This Court specifically noted that Plaintiffs had presented evidence in support of their claim that Faiver and Rich, as part of CHR, were "deliberately indifferent to the need to properly train CHR's medical staff, adequately staff the Medical Department with qualified personnel, including on the night of Mr. Mikkelsen's death, and violated Mr. Mikkelsen's Eighth Amendment rights by failing to follow suicide prevention policies and procedures." (Id., p. 36:10-19, also specifically noting that the fact that Defendants Faiver and Rich were not present in Arizona did not relieve them of liability for their failure to provide adequate and/or competent staff, etc.) Because Defendants' purported motion in limine is really a grossly untimely dispositive motion (dispositive motions were due by October 22, 2004) regarding causation, and is not a proper motion in limine, this Court should not consider Defendants' motion to exclude all evidence of Defendants' failure to provide adequate and/or competent staff for the medical department of the YCDC. In the event this Court addresses the merits of Defendants' motion, it should be denied. As set forth above, evidence of Defendants' failure to provide adequate and/or competent staff is clearly relevant to Plaintiffs' claim of negligent failure to provide adequate or competent medical staffing and Plaintiffs' Section 1983 claim, since it shows deliberate indifference. The evidence is also relevant and admissible on the issue of punitive damages, since it demonstrates Defendants' reckless disregard of the substantial risk of serious injury or death created by their knowing and intentional failure to provide adequate or competent medical staff and/or services. Plaintiffs have already provided substantial evidence of causation, including the opinion of Defendants' own expert, who testified under oath that the opinions of Plaintiffs' expert
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regarding causation were reasonable. (Plaintiffs' STATEMENT OF FACTS in response to Defendants' consolidated motions for partial summary judgment, ¶¶ 50-51, 70-81, 110-115; Plaintiffs' STATEMENT OF FACTS in support of their motions for partial summary judgment regarding the negligence of CHR's nurses and CHR's failure to provide adequate and/or competent staff, ¶¶ 50, 51.) Plaintiffs presented clear testimony from Dr. Pike, an expert in toxicology and emergency medicine, who testified that Mr. Mikkelsen could have been saved in a matter of minutes. CHR's only medical expert, Dr. Gottula, deferred to Dr. Pike's expertise and agrees that Dr. Pike's opinions are reasonable. Id. Dr. Gottula has also specifically testified that Mr. Mikkelsen would not have died if CHR's staff had acted properly. (Plaintiffs' STATEMENT OF FACTS in support of their motions for partial summary judgment regarding the negligence of CHR's nursing staff and failure to provide adequate and/or competent medical staff, ¶¶ 50, 51, which Statement of Facts are incorporated herein by reference). Defendants failed to disclose any expert regarding causation, and, therefore, are desperate to win their case by means other than the merits. Because there is more than sufficient evidence of causation, Defendants' motion to exclude all evidence of failure to provide adequate or competent staff based upon alleged lack of evidence of causation, must fail, even if this Court reaches the merits. IV. Additional Response to Defendants' Motion to Exclude Dr. Rich's history of incompetence and his lack of qualification to act as Medical Director. Evidence regarding Dr. Rich's prior negligence and incompetence is not improper

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character evidence. Dr. Rich's history is not offered to prove that he acted in "conformity
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therewith," but to show his lack of qualification for the position that he held, and to show the
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state of mind of Defendants CHR, Faiver and Rich ­ their deliberate indifference and
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reckless disregard for the medical needs and safety of Kelly Mikkelsen and others by placing
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Dr. Rich in charge of the medical department at the YCDC.
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Nor should the evidence be excluded under FRE 403. Rule 403 permits exclusion where
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"unfair" prejudice "substantially" outweighs the probative value of the evidence. Evidence of
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Dr. Rich's lack of qualification for the position of Medical Director is not "unfairly" prejudicial.
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Plaintiffs are not attempting to create an inference that Dr. Rich duplicated his prior medical
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malpractice in this instance. The point Plaintiffs are making is that Dr. Rich was never
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qualified to act as Medical Director and that he never, in fact, did anything as Medical Director, and that Defendants never intended to fulfill their obligations to provide adequate medical services at the YCDC. While the evidence is certainly not favorable for Defendants, that is precisely what makes it relevant, and that is not the type of "unfair" prejudice that Rule 403 seeks to exclude. See, Comment, A.R.E. 403 ("Because the whole purpose of the adversarial system is for one party to introduce evidence that prejudices the other party's case, the trial court should not exclude evidence merely because it is prejudicial, it should do so only if the evidence is unfairly prejudicial.") And, because the evidence is relevant and probative on the issues of negligent staffing, training, and supervision, as well as deliberate indifference and reckless disregard for purposes of Section 1983 and punitive damages, the relevance is not "substantially" outweighed by any arguable prejudice. The Mulhern v. City of Scottsdale, case cited by Defendants does not stand for the proposition that evidence of Dr. Rich's lack of qualifications should be excluded. 165 Ariz. 395, 398, 799 P.2d 15, 18 (1990). Indeed, the Mulhern case did not even involve the exclusion of such evidence. Similar evidence was admitted in Mulhern and there was no contention that such admission was improper. Mulhern addressed the propriety of the trial court's discretionary order severing the trial, so that the alleged negligence of the defendant police officer could be tried separately before the claim that the defendant city negligently assigned the police officer to patrol duty, in light of the officer's history of drug and alcohol abuse and criminal charges against him. Mulhern simply held that the trial court did not abuse its broad discretion in severing the trial, since the evidence of the police officer's history was relevant to the claim that the city negligently placed him on patrol duty, but the evidence was not relevant to show that the officer acted negligently on the occasion in question, and could have been prejudicial in the negligence claim against the police officer. The Texas case cited in Mulhern also involved severance for trial, not exclusion of evidence. In Guidry v. Phillips, 580 S.W.2d 883 (Tex. App. 1979), the court held that the trial court did not abuse its broad discretion in severing the trial of a claim of medical malpractice against an individual doctor and a claim for negligence against a medical society for failing to take action on prior complaints against the doctor and
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failure to disclose those prior complaints to the patient.

Again, the evidence was actually

admitted in the claim against the medical society for negligence and the Guidry court did not address the admissibility of the evidence at all, but only the separation of the claims for trial. Since Defendants have not moved to sever the claims for trial, Plaintiffs will not address that issue. But neither Mulhern, nor Guidry supports Defendants' attempt to exclude all evidence of Dr. Rich's lack of experience and lack of qualifications to act as Medical Director. Such evidence is clearly relevant to the issues of negligent staffing, deliberate indifference and punitive damages. Such evidence is not "unfairly prejudicial" to Dr. Rich, since Plaintiffs are not attempting to assert that Dr. Rich replicated his medical malpractice in this case, but that he and Faiver and CHR failed to provide adequate or competent medical staffing and services and that they did so knowingly. Any arguable prejudice is not "unfair," does not substantially outweigh its clear relevance, and should not prevent the admission of such evidence in this case. V. Additional Response to Defendants' Motion to Exclude Evidence of Hiring and Holding Ofel Diaz out as a Certified Nursing Assistant. As set forth above, even Defendants' own expert agrees that hiring and holding Ofel Diaz

15

out as a Certified Nursing Assistant was negligent and shows Defendants' deliberate
16

indifference. The issue is not simply whether Ms. Diaz's lack of training and certification as a
17

CNA proximately caused Kelly Mikkelsen's death, although that is certainly an issue for the
18 19

jury.2 The evidence of Ofel Diaz's lack of qualification also goes to Defendants' negligent failure to provide adequate/competent staffing, deliberate indifference under Section 1983, and

20

punitive damages based upon reckless disregard of the near certainty of severe injury or death
21 22 23 24 25 26 27 28 It is for the jury to decide whether Ofel Diaz's lack of training and certification was a proximate cause of Kelly Mikkelsen's death. A jury could readily determine that a properly trained and certified CNA would have known to contact a nurse to evaluate Kelly Mikkelsen, or keep him in the Medical Department for observation, or take other action that would have prevented his death. Indeed, this will be the testimony of plaintiffs' correctional health nursing expert, Myrna Reed, R.N. (See Rule 26 Expert Report of Myrna Reed, R.N. attached hereto as Exhibit P.) The issue of proximate cause is not a proper subject for a motion in limine and is an untimely dispositive motion, which Plaintiffs have already addressed in some detail in connection with previous motions for partial summary judgment. Accordingly, Defendants will not address the issue again here, but refer this Court to their previous memoranda and facts in connection with Defendants' consolidated motions for partial summary judgment and Plaintiffs' motion regarding the negligence of CHR's employees and negligent failure to provide adequate or competent staff, which are incorporated herein by reference. 14 Filed 10/25/2005
2

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likely to result from Defendants' knowing failure to provide adequate and competent medical staffing and services to inmates at the YCDC. The point is not just that Ofel Diaz was not a CNA, but that Ms. Diaz and the CHR Defendants knowingly and intentionally misrepresented to everyone that she was, in fact, a CNA. This shows not only negligence, but also deliberate indifference and reckless disregard for Mr. Mikkelsen's safety by Diaz, Rich, Faiver, and CHR. And while evidence of Ms. Diaz's lack of a license would not be enough, in and of itself,3 to prove that Defendants were negligent, it is certainly relevant to Plaintiffs' claims for negligent staffing, deliberate indifference under Section 1983, and punitive damages. Accordingly, Defendants' motion to exclude evidence that Defendants and Ms. Diaz knowingly misrepresented to everyone that Ms. Diaz's was a CNA, should be denied. VI. Conclusion. Defendants' motion to exclude all evidence of their failure to provide adequate and/or competent staff for the YCDC is based on alleged lack of evidence of causation and is not a proper motion in limine, but an untimely dispositive motion for partial summary judgment. For this reason alone, this Court should deny that motion. In the event that this Court addresses the merits, there is ample evidence of causation and the evidence is plainly relevant and admissible. Likewise, evidence of Dr. Rich's complete lack of qualifications and Defendants' misrepresentations regarding Ofel Diaz's qualifications, is relevant and admissible on Plaintiffs' claims for negligent failure to provide adequate and competent staff, Plaintiffs' Section 1983 claim, and Plaintiffs' punitive damage claim. All three of Defendants' motions in limine should be denied. WHEREFORE, Plaintiffs respectfully request that this Court deny Defendants' three
Mutz and Tellez, cited by Defendants, hold only that violation of a driver's licensing statute is not negligence per se, since the statute does not prescribe a standard of care. Mutz v. Lucero, 90 Ariz. 38, 41, 365 P.2d 49, 51 (1961); Tellez v. Saban, 188 Ariz. 165, 933 P.2d 1233 (1996). Plaintiffs are not asserting that Ms. Diaz's failure to have a CNA certification is medical malpractice per se. Plaintiffs are asserting that CHR's knowing hiring of an unqualified person and Defendants' misrepresentation of her qualification is evidence of negligent staffing and training, deliberate indifference, and/or reckless disregard for Mr. Mikkelsen's safety. Neither Mutz, nor Tellez, held that such evidence was inadmissible in this, or any similar, context. Indeed, Tellez permitted the admission of evidence that the defendant car rental company rented a car to an unlicensed driver as evidence that the car rental company was negligent. 15 Filed 10/25/2005
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motions in limine: (1) Defendants' Motion In Limine To Preclude Evidence Of And/Or Reference To Any And All Of Dr. Rich's Past Licensing Issues, Medical Malpractice Judgments Or Cases, Medical Board Suspensions, Reprimands, And Probations, Past Criminal History And Psychological Treatments; (2) Defendants' Motion in Limine to Preclude Evidence of an/dor Reference to Ofel Diaz's Lack of a Nursing License or Certificate; and (3) Defendants' Motion in Limine to Preclude Evidence of and/or Reference to Correctional Health resources, Inc.'s Alleged Failure to Provide Adequate and/or Competent Medical Personnel.
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 23 Phoenix, Arizona 85003 Honorable James A. Teilborg U. S. District Court 25 401 West Washington Street Phoenix, Arizona 85003
24 26

A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E 28 Yuma, Arizona 85364
27 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, 16 Filed 10/25/2005

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. James W. Barnhouse, Esq. 2 RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 3 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich 4
1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Filed 10/25/2005 By /s/ Sue Ketz Michael J. Aboud Esq. ABOUD & ABOUD 100 North Stone Avenue, #303 Tucson, Arizona 85701 Co-Counsel for Plaintiff Fox Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 150 W. Second Street Yuma, Arizona 85364 Co-Counsel for Plaintiff Fox

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