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 EVIDENCE OF AND/OR REFERENCE TO OFEL DIAZ'S LACK OF A NURSING LICENSE OR CERTIFICATE

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

(Page 1, No. CIV 02-2252-PHX-JAT)

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Defendant Correctional Health Resources, Inc. ("defendant"), by and through counsel undersigned, moves in limine for an order precluding plaintiffs from introducing evidence of and/or referring to Ofel Diaz's lack of a nursing license or certificate. 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.) In this case, the fact that Ms. Diaz did not have a license or certificate is irrelevant to the determination of the action and therefore is not evidence properly considered before this Court and must be excluded. The fact that Ms. Diaz was unlicensed and uncertified to practice as a nursing assistant, does not, in and of itself, prove negligence. Similar to the driver's licensing statute, evidence that Ms. Diaz did not possess a license is inadmissible to show negligence. Mutz v. Lucero, 90 Ariz. 38, 41, 365 P.2d 49, 51 (1961). "Only when there is a proximal causal connection between the violation of the license statute and the injury complained of that the violation is admissible as evidence of negligence." Id. Furthermore, if the illegality of the defendant's act was a mere condition and not a cause of the accident, evidence that defendant lacked a license is inadmissible. Id. However, even if the Court found that Ms. Diaz's lack of a license or certificate constituted negligence, this negligence was not a proximate cause of plaintiff's death; i.e., this tragedy would have occurred whether or not Ms. Diaz had a valid license or certificate on that day. For example, even if Ms. Diaz held a nursing assistant license or certificate on this day, she still would not have been qualified, or expected, to perform a risk assessment of Kelly Mikkelsen. In Tellez v. Saban, 188 Ariz. 165, 174, 933 P.2d 1233, 1242 (1996) (Voss J., dissenting), the Court stated: Because a licensing statute does not tell drivers how to drive and thus does not establish a standard of conduct, one cannot determine from the mere fact that a driver is unlicensed whether he is incompetent or whether he drove with due care on a particular occasion.
(Page 2, No. CIV 02-2252-PHX-JAT)

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

Case 2:02-cv-02252-JAT

1004.0604 Document 252

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1 Similarly here, because the nursing assistant certification statute does not establish a standard 2 of conduct, one cannot determine from the mere fact that Ms. Diaz was unlicensed whether 3 she was incompetent or if she acted with due care on this particular occasion. 4 Therefore, because Ms. Diaz's lack of a valid license or certificate can only amount to 5 a mere condition and not the proximate cause of Mr. Mikkelsen's death, and because lack of a 6 valid license or certificate does not in and of itself prove that Ms. Diaz was negligent, such 7 evidence is evidence not properly considered before this Court and must be excluded. 8 RESPECTFULLY SUBMITTED this 17th day of October, 2005. 9

RENAUD COOK DRURY MESAROS, PA
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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

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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