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. 7 TO PRECLUDE EVIDENCE OR ARGUMENT REGARDING THE ALLOCATION OF FAULT TO RUBECCA MIKKELSEN

(Assigned to the Honorable James A. Teilborg)

Plaintiffs move this Court for an order in limine precluding any evidence, or argument suggesting that the jury can or should allocate fault to Rubecca Mikkelsen. Defendants did not preserve the argument in their Answers and did not file a timely notice of non-party at fault.

Case 2:02-cv-02252-JAT

Document 247

Filed 10/17/2005

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Accordingly, they cannot argue the fault of Rubecca Mikkelsen at trial. RESPECTFULLY SUBMITTED this 17th day of October, 2005. BEALE, MICHEAELS & SLACK, P.C.

By

/s/ John A. Micheaels John A. Micheaels Tracy A. Gromer 1440 E. Missouri Ave. Suite 150 Phoenix, Arizona 85014 Attorneys for Plaintiff Dennis Mikkelsen

MEMORANDUM OF POINTS AND AUTHORITIES Defendants CHR, Rich, and Faiver, all filed separate answers to Plaintiffs' Second Amended Complaint. None of them asserted the affirmative defense that Mr. Mikkelsen's death was caused in whole or part by Rubecca Mikkelsen. All of the Defendants alleged that Kelly Mikkelsen was at fault in his own death. They also alleged that "third parties over whom [they] had no control" caused Kelly Mikkelsen's death and reserved the right to file a notice of nonparties at fault. But they did not indicate that Rubecca Mikkelsen was at fault. (Answers of CHR, Rich and Faiver to Second Amended Complaint.) Thereafter defendants filed an untimely Notice of Non Party at Fault, in which they asserted that Rubecca Mikkelsen was at fault because she "failed to call local police or emergency medical services for assistance." (July 13, 2004 Notice of Non Party at Fault.) Because the Notice was not filed within 150 days of their initial answers, the Notice was untimely and defendants cannot argue Rubecca Mikkelsen's fault at trial. Daly v. Royal Ins. Co. of America, 2002 U.S. Dist. LEXIS 16183 (D. Ariz., July 16, 2002), 2002 WL 1768887, 10 (D. Ariz. 2002). The notice must be filed within 150 days of the initial answer, not the answer to any amended complaint. Id. In this case, Defendants were not even close to the deadline, as their Notice was filed more than seven months after their answers to the second amended complaint and years after their initial answers were filed. "The trier of fact may not apportion any percentage of fault to a nonparty not timely disclosed except upon written agreement of the parties of `upon motion establishing newly discovered evidence of such nonparty's liability

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which could not have been discovered within the time periods for compliance with the [deadline] requirements.' Ariz. R. Civ. P. 26(b)." Id. The rule requires timely filing and the exclusion of any evidence or argument attempting to allocate fault for failure to file in a timely manner, even if the Plaintiffs suffer no prejudice: "Rule 26(b)(5) imposes a mandatory and clearly defined deadline and does not require a finding of prejudice to the plaintiff in order to preclude the allocation of fault to a nonparty not properly identified." Id. Defendants' failure to preserve the affirmative defense that Kellly Mikkelsen's death was caused in part by Rubecca Mikkelsen and failed to timely identify Rubecca Mikkelsen as a nonparty at fault, defendants cannot attempt to allocate fault to Rubecca Mikkelsen at trial of this matter. WHEREFORE, Plaintiffs respectfully request that this Court enter an order in limine precluding any evidence or argument suggesting the allocation of fault to Rubecca Mikkelsen. 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 Phoenix, Arizona 85003

Honorable James A. Teilborg U. S. District Court 401 West Washington Street 24 Phoenix, Arizona 85003 A. James Clark, Esq. CLARK & MOORE 26 256 South Second Avenue, Suite E Yuma, Arizona 85364 27 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
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