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 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

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Plaintiffs have disclosed an intent to present the report and opinion of John E. Buehler concerning the present value of cost of raising the children of Kelly D. Mikkelsen as a

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

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discrete item of damages sought in this case. Because the report does not contain any discussion by Dr. Buehler of how much, if any, of the cost of raising the children would have been assumed by Kelly D. Mikkelsen, the report fails to meet the requirements of rule 26(a)(2). Accordingly, based upon the limited disclosure by Dr. Buehler, there can be no testimony from him concerning the share of the costs of raising the children decedent Kelly D. Mikkelsen might have been expected to pay. Without such correlation, the evidence becomes irrelevant under Rule 401 of the Federal Rules of Civil Procedure and must be excluded under Rule 402 of the Federal Rules of Civil Procedure. As the only evidence brought forward by plaintiffs throughout the discovery process is to the effect that plaintiff Rebecca Mikkelsen paid the bills with money she earned, there is no disclosed evidence upon which a jury might be expected to determine what amount, if any, of the future cost of raising the children might have been forthcoming from decedent Kelly Mikkelsen. Simply stating such a figure without any such evidence concerning Mikkelsen's ability to pay it had he lived would tend to confuse the issues and mislead the jury in violation of Rule 403 of the Federal Rules of Evidence. Were such testimony and evidence presented, a jury could only speculate as to the probability that decedent Kelly Mikkelsen would have contributed any money to the raising of his children. The amount that he might be expected to contribute is further complicated by fact that at the time of his death, plaintiff Rebecca Mikkelsen was implementing separation and divorce procedures. Given the fact that part of the reason decedent Kelly Mikkelsen was in jail in the first place was because of a failure to pay earlier support obligations for another child, the jury is left to further speculate as to what, if any, contribution he might be expected to make in raising of his children in the future. See McLaren v. Plastic Industries, Inc., 97 F.3d 347 (Ca.9 Idaho, 1996). In summary, plaintiffs' attempt to introduce bare numbers representing the projected future cost of raising the children, should be disallowed by this Court as the evidence of such

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

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cost lacks any basis for attributing any or all of the expenses to decedent Kelly Mikkelsen's probable contribution in the future. Putting that number before the jury without any basis or foundation would require it to engage in speculation as to whether any contribution could be expected from the decedent Kelly Mikkelsen. Accordingly, pursuant to Rule 26 of the Federal Rules of Civil Procedure and Rules 402, 402 and 403 of the Federal Rules of Evidence, defendant Correctional Health Resources, Inc., requests that any evidence of costs to raise the children be excluded. 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:

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 ... ...

By

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

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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

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

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