Free Reply to Response 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, PA 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 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 and Joseph E. Rich, M.D. UNITED STATES DISTRICT COURT

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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, 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

DEFENDANTS' REPLY TO PLAINTIFFS' MIKKELSENS' RESPONSE TO DEFENDANTS' MOTION FOR RELIEF FROM PORTION OF PRETRIAL SCHEDULING ORDER RELATING TO INITIAL EXCHANGING OF EXHIBITS

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

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INTRODUCTION Defendants' Motion for Relief from Portion of Pretrial Scheduling Order As Relates to Initial Exchanging of Exhibits demonstrated an agreement and attempt by the parties to substantially comply with the Court's order setting a final pretrial conference. As plaintiffs' counsel's response in opposition indicated, defendants provided a draft final joint proposed pretrial order at the October 3, 2005, meeting. That draft listed numerous potential trial witnesses and depositions, as well as exhibits. (A copy of defendants draft final joint proposed pretrial order was in fact attached to plaintiffs' counsel's response to defendants' motion on the present subject, as Exhibit B). Michael Aboud, counsel representing plaintiff Tracey Fox, attended the meeting by phone and did not supply his exhibits or exhibit list until October 7, 2005 (as demonstrated by Exhibit A8, attached to defendants' motion for relief). Plaintiffs Mikkelsen's counsel asserts that his draft final proposed joint pretrial order was complete in every way. It was not. (He also attached what purports to be a copy of his final proposed joint pretrial order from October 3, 2005, to his response to defendants' Motion as Exhibit A). COMPARISON OF THE PARTIES' POSITIONS In reference to his proposed order, plaintiffs' counsel said that he identified his depositions according to page and line number. At page 23, of plaintiffs Mikkelsen's Exhibit A, there is reference to an Insert "A" attached (but no depositions, pages, or line numbers were supplied). There was no Insert A attached, as also occurs on the attachment which was supplied to the Court as Exhibit A. Further, at page 22 of plaintiffs' Exhibit A to plaintiffs response, there are only 77 exhibits identified, while the final proposal from plaintiffs included 92. Further, when defense counsel was at plaintiffs' counsel's office on October 3, 2005 at approximately 1:00 p.m., plaintiffs' counsel raised a remark about a possible "technical"

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

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violation of the Court's order. Defense counsel offered to return to his office and pack up all of the boxes which contained exhibits and return with them by 3:30 p.m. Plaintiffs' counsel did not seem interested and even indicated that he had something else to get to later in the afternoon. Later that afternoon Dawn Clark (defense counsel's paralegal) emailed the reduced, revised list to plaintiffs' counsel. On October 5, 2005, that reduced group of exhibits had been delivered to plaintiffs' counsel. On October 7, 2005, Mr. Aboud's exhibits were delivered to defense counsel as well as plaintiffs Mikkelsen's counsel. Obviously, counsel for plaintiffs Mikkelsen acknowledges that defendants provided him with a draft Final Joint Proposed Pretrial Order. He questions the extent of it, as well as its size. He also argues about the number of trial witnesses who are listed there, along with the numbers of depositions and exhibits, and suggests that such could not have been seriously contemplated as defendants' position on trial preparation. In particular, he points out that defendants listed 105 potential trial witnesses and 33 depositions as of October 3, 2005. Ultimately when that portion of the list was whittled down for the actual joint proposed pretrial order which was filed, there was still a total of 76 witnesses (in three categories), and 19 depositions listed. The exhibit list had been reduced from 382 to 147. Apparently because plaintiffs' counsel's witness numbers (15), depositions (2), and exhibits (92 total, composed of 78 from plaintiffs Mikkelsen and 14 from plaintiff Fox), were considerably less in number, plaintiffs Mikkelsen's attorney believes that serves as some evidence that the defendants are being totally unreasonable. The belief is simply wrong. Instead, defendants are in the position where they must: First defend their own case from the overwhelming fault of plaintiffs. That step will include showing especially how plaintiffs' fault was significantly greater than the totality of any potential fault by defendants combined (CHR and the previously dismissed Yuma County defendants). Second, defendants will be in the unusual role of proving the amount of fault of the

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

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former co-defendants (Yuma County), as split between all of these defendants. The latter role is one which plaintiffs would be assuming, if the Yuma County defendants had not previously decided that their possible culpability was significant enough to arrive at a settlement with plaintiffs. Plaintiffs now want to act as though this is a very simple case of some injured plaintiffs who were walking in a cross-walk and/or run down by a negligent driver. The case is not that simple on liability alone. Third, any damages allegedly suffered by plaintiffs, are significantly in dispute based upon decedent Kelly Mikkelsen's unfortunate and generally unsuccessful career job path. Fourth, plaintiffs have chosen to bring this matter as multiple counts, which include the state wrongful death claim, and their questionable attempt to bring a federal civil rights action. Their briefing and contentions generally attempt improperly to lump the two actions together. There are obvious attempts to have overlap between the two, which could conveniently suggest an attempt to confuse the jury. The correspondence which was attached to defendants' Motion for Relief from a Portion of Pretrial Scheduling Order Relating to Exchange of Marked Exhibits, demonstrates that on October 3, 2005, the parties were proceeding to exchange exhibits, including transmittal of a reduced list of exhibits to plaintiffs' that same date. Plaintiffs' attorney acknowledged receipt of that reduced list. The matter did not become contentious until the following day when defense counsel advised plaintiffs' attorney that the Motion Suggesting Lack of Jurisdiction and Remand to the State Court was being filed. Further, in plaintiffs' attorney's letter of October 5, 2005 (erroneously dated September 22, 2005), he acknowledged in the second paragraph that he had said he did not want boxes of disclosure/discovery materials brought to the October 3, 2005 meeting, but did not say not to bring the trial exhibits. He does not claim that he said to bring them either. In fact, all of the trial exhibits, obviously, were part of the disclosure/discovery materials, or they would never have been in the case.

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

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Even through October 5, 2005, counsel were exchanging letters, talking about other aspects of the case and still attempting to straighten out numbering and content of exhibits. Finally, on October 7, 2005, the 14 exhibits from Michael Aboud (plaintiff Tracey Fox's counsel), were received by defense counsel. CONCLUSION Clearly, counsel for the parties were working together throughout the week of October 3, 2005, to create a package for submission to the Court. Accordingly, the Court should grant relief from strict compliance with the October 3, 2005 deadlines for all the reasons stated in Defendants' Motion for Relief and this Reply. RESPECTFULLY SUBMITTED this 19th 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, P.C. By: /s/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 E. 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

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E-Filed with the U.S. District Court this 19th day of October, 2005; and COPY of the foregoing hand-delivered this 19th of October, 2005, to: Hon. James A. Teilborg U.S. District Court 401 W. Washington Phoenix, Arizona 85003

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

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