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 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

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 any and all of Dr. Rich's past licensing issues, medical malpractice judgments/cases, medical board suspensions, reprimands and probations, criminal history and psychological treatments. All such evidence is irrelevant, unduly prejudicial and constitutes inadmissible character evidence. 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.) Dr. Rich was a physician licensed in Tennessee, and also the co-owner, vice president and corporate medical director of defendant at the time of the incident in question. Dr. Rich never had a license to practice medicine in Arizona, nor was he ever attempting to practice medicine in Arizona. Furthermore, Dr. Rich did not have any history of problems in Arizona, medical, criminal or otherwise. The fact that Dr. Rich had a prior medical licensing issues, a criminal history and the fact that he underwent psychological treatment is totally irrelevant to any determination in this action because Dr. Rich's previous problems have no connection with Kelly Mikkelsen's death. Therefore, such evidence must be excluded pursuant to Rule 402 because "evidence which is not relevant is not admissible." Rule 403, Federal Rules of Evidence, states in pertinent part "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Even if the Court were to find any or all of Dr. Rich's previous problems somewhat relevant to the case at bar, such evidence must still be excluded because such evidence would be highly prejudicial, confusing, and would simply mislead the jury with respect to Dr. Rich's duty as a corporate medical director. Arizona Courts have recognized the "extreme prejudicial effect" inherent in the admission of evidence of prior medical complaints. (See Mulhern v. City of Scottsdale, 165 Ariz. 395, 398, 799 P.2d 15, 18 (1990), citing a Texas case with approval, holding in 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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negligent entrustment case that evidence of various past complaints against a doctor were inadmissible and prejudicial to the doctor and his then current malpractice action due to the "extremely prejudicial effect.") Therefore, defendant moves to exclude plaintiffs' evidence and argument regarding any and all of Dr. Rich's above-mentioned problems pursuant to Rules 402 and 403, as it is irrelevant and its value, if any, is substantially outweighed by the "extremely prejudicial effect" of unfair prejudice and confusion of the issues. It would also constitute undue delay and a waste of time. Furthermore, evidence of any and all of Dr. Rich's previous problems constitute inadmissible character evidence pursuant to Rule 404, Federal Rules of Evidence. Rule 404(a) states: Evidence of a person's character or a trait of character is not admissible for the purpose of proving action and conformity therewith on a particular occasion. Federal Rules of Evidence 404(b) states, in pertinent part: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action and conformity therewith. Any and all evidence of Dr. Rich's prior problems, aside from being irrelevant and prejudicial, is also inadmissible to prove that Dr. Rich acted in any way negligently, fraudulently, criminally or otherwise in the case at bar, i.e., in his capacity as corporate medical director for defendant. Therefore, because any and all evidence of Dr. Rich's past licensing issues, medical malpractice judgment/cases, medical board suspensions, reprimands and probations, criminal history and psychological treatments are not evidence properly considered before this Court, such evidence must be excluded as irrelevant, unduly prejudicial and impermissible character evidence. ... ...

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

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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 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

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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