Free Motion in Limine - District Court of Arizona - Arizona

A. James Clark, #002901 CLARK & MOORE 2 256 South Second Avenue, #E Yuma, AZ 85364 3 Telephone (928) 783-6233
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Attorneys for Plaintiff Rubecca Mikkelsen, etc.

John A. Micheaels -- 05917 BEALE, MICHEAELS & SLACK, P.C. 6 1440 E. Missouri Avenue, #150 Phoenix, Arizona 85014 7 (602) 285-1444
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Attorneys for Plaintiff Dennis Mikkelsen UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
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RUBECCA MIKKELSEN, surviving) spouse of Kelly Mikkelsen, deceased,) 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 FOX-) TANGA, ) ) Plaintiffs, ) ) vs. ) ) C O R R E C T I O N A L H E A L T H) 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 and) wife; DOES I through V, inclusive, ) ) Defendants. ) ______________________________ )

No. CIV 02-2252-PHX-JAT PLAINTIFFS MIKKELSEN'S MOTION IN LIMINE NO. 6 TO PRECLUDE ANY ATTEMPT TO ARGUE THAT KELLY MIKKELSEN WAS COMPARATIVELY NEGLIGENT

(Assigned to the Honorable James A. Teilborg)

Plaintiffs move this Court for an order in limine precluding any evidence, or argument that Kelly Mikkelsen was comparatively negligent in causing his own death because he took pharmaceuticals before returning to the jail.

Case 2:02-cv-02252-JAT

Document 248

Filed 10/17/2005

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RESPECTFULLY SUBMITTED this 17th day of October, 2005.
BEALE, MICHEAELS & SLACK, P.C. By /s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

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MEMORANDUM OF POINTS AND AUTHORITIES On October 11, 2001, defendants had an undisputed obligation to assess Kelly Mikkelsen and get him treatment for his overdose. Defendants cannot attempt to blame Kelly Mikkelsen for injuring himself, since that would effectively relieve defendants from any liability for breach of their undisputed obligation to care for him. Where, as here, the victim is responsible for the injury which caused the need for medical treatment, the victim's conduct in causing his injury cannot be considered as evidence of comparative fault in a medical malpractice action for negligence in his subsequent treatment. "The majority of courts generally agree that evidence of the patient's negligent or intentional conduct that occurs prior to the negligent treatment and provides only the occasion for a subsequent malpractice claim is inapplicable to the assessment of damages between the patient and the negligent health care provider." Dermot v. Mid-Coast Hospital, 36 F. Supp. 2d 32 (D. Maine 1999) (citations omitted). According to the Restatement: "in a case involving negligent rendition of a service, including medical services, a factfinder does not consider any plaintiff's conduct that created the condition the service was employed to remedy." Restatement (Third) of
Torts: Apportionment of Liability 7 cmt. m (2000). As one court noted: Those patients who may

have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded." Id., 36 F. Supp 2d at 37, quoting Fritts v. McKinne, 934 P.2d 371, 374 (Ok. App. 1996). More specifically, "[i]n medical malpractice cases where the patient's attempt to commit suicide occasioned the need for medical treatment which was the basis for a subsequent medical
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malpractice case, courts have held that the patient's actions were not legally significant once the malpractice of the medical defendant was established as the proximate cause of the plaintiff's injury." Id., 36 F. Supp. 2d at 36; citing Bourne v. Seventh Ward Gen. Hosp., 546 S.2d 197, 20305; Cowan v. Doering, 522 A.2d 444, 448-49 (N.J. Sup. Cr. 1987); Whitehead Linkous, 404 So.2d 377, 379 (Fla. 1981). Kelly Mikkelsen's conduct in ingesting pills before returning to the jail cannot be considered in determining the liability of the CHR Defendants any more than if Mr. Mikkelsen had injured himself in an accident that was his own fault. To hold otherwise would effectively excuse medical practitioners from liability for their negligence any time the initial injury was caused by the plaintiff's negligent or intentional conduct. Dermot, 36 F. Supp. 2d at 38. Wherefore, Plaintiffs respectfully request that this Court enter an order in limine precluding any argument or suggestion that Kelly Mikkelsen should be apportioned some fault for his conduct in ingesting pills prior to his death. RESPECTFULLY SUBMITTED this 17th day of October, 2005.
BEALE, MICHEAELS & SLACK, P.C.

By

/s/ John A. Micheaels John A. Micheaels 1440 East Missouri Avenue, #150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

Original/Copy ofththe foregoing mailed/ delivered this 17 day of October, 2005, to:

Clerk of the U.S. District Court 401 West Washington Street 23 Phoenix, Arizona 85003 Honorable James A. Teilborg U. S. District Court 25 401 West Washington Street Phoenix, Arizona 85003
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A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E 28 Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al,
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James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. 2 One North Central Avenue, #900 Phoenix, Arizona 85004 3 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich
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Michael J. Aboud Esq. ABOUD & ABOUD 100 North Stone Avenue, #303 6 Tucson, Arizona 85701 Co-Counsel for Plaintiff Fox
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Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 150 W. Second Street 9 Yuma, Arizona 85364 Co-Counsel for Plaintiff Fox
8 10 11 By 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case 2:02-cv-02252-JAT Document 248 Filed 10/17/2005 Page 4 of 4 /s/ Mary Beth Boat