Free Motion in Limine - 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 Attorneys for Defendants Correctional Health Resources, Inc., Kenneth Faiver and 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 and 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

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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

Defendant Correctional Health Resources, Inc. ("defendant"), by and through counsel undersigned, moves in limine for an order precluding plaintiffs from introducing evidence of

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

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and/or referring to defendant's alleged failure to provide adequate and/or competent medical personnel. Rule 401, Federal Rules of Evidence, defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Emphasis added). Pursuant to Rule 402 Federal Rules of Evidence, "evidence which is not relevant is not admissible." Evidence of and/or reference to defendant's alleged failure to provide adequate and/or competent medical personnel is irrelevant because such evidence is not of consequence to the determination of this action and therefore must be excluded. A host of testimony shows that defendant's employees, LPN Cheryl Kinsley and RN Kelly Bragan, were at the detention facility between the time that decedent Kelly Mikkelsen arrived there at approximately 6:00 p.m. on October 11, 2001, and the time of his death at 8:00 p.m. on that same date. While defendant's staffing may have been inadequate at other times, it was adequate at the proximate time. No plaintiffs' Statement of Facts refers to any document that requires defendant to have more than one LPN or more than one RN available at any time. Nurse Bragan was there when Kelly Mikkelsen arrived and when he died, but unfortunately Nurse Bragan was not provided an opportunity to assess Mikkelsen or provided any information that would have caused her to have reason to assess Mikkelsen while he was alive. There is no evidence that LPN Kinsley or Nurse Bragan were improperly trained, and the evidence is that Dr. Babiker, although available, was not called, and Dr. Faiver and Dr. Rich were not in Yuma on the day in question. Any testimony regarding any staffing is not relevant because staffing was adequate during the proximate time from 6:00 p.m. to 8:00 p.m. on October 11, 2001. Failure to provide staffing at times other than from 6:00 p.m. to 8:00 p.m. on October 11, 2001 is simply not a proximate cause of decedent's death and plaintiffs have not presented any contrary testimony or law. Therefore, any and all such evidence or reference to defendant's

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

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alleged failure to provide adequate and/or competent medical personnel must be excluded as irrelevant pursuant to Rule 402. RESPECTFULLY SUBMITTED this 17th day of October, 2005.

RENAUD COOK DRURY MESAROS, PA

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 Defendants Correctional Health Resources, Inc., Kenneth Faiver and Rosemary Faiver and Joseph E. Rich, M.D. PAUL G. ULRICH, PC

By:

By

S/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 East El Caminito Drive Phoenix, Arizona 85020-3503 Co-counsel for Defendants Correctional Health Resources, Inc, Kenneth Faiver and Rosemary Faiver and Joseph E. Rich, M.D. E-Filed with the U.S. District Court this 17th day of October, 2005; and COPY of the foregoing delivered this 17th day of October, 2005, to: Hon. James A. Teilborg U.S. District Court of Arizona 401 West Washington Suite 523 SPC 51 Phoenix, Arizona 85003-0001

S/ Karen M. Chenowth

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

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