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. 2 TO PRECLUDE EVIDENCE OF SETTLEMENT WITH THE FORMER COUNTY DEFENDANTS, AND TO PRECLUDE ANY ARGUMENT THAT THE JURY SHOULD ASSIGN FAULT TO THE FORMER DEFENDANTS, SINCE THEY WERE NOT NAMED AS NONPARTIES AT FAULT

(Assigned to the Honorable James A. Teilborg)

Plaintiffs move this Court for an order in limine precluding any evidence, argument or reference relating to plaintiffs' settlement with former defendants, including all of the Yuma County entities and the individual Yuma County representatives in this action. Plaintiffs will

Case 2:02-cv-02252-JAT

Document 245

Filed 10/17/2005

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refer to the former defendants as the "Former County Defendants." Such evidence is not relevant to any issue in this litigation, would be more prejudicial than probative, would only tend to mislead the jury as to the issues material to this claim, and is expressly made inadmissible by Rule 408, Federal Rules of Evidence (F.R.E.). Accordingly, any evidence, argument or reference made on this subject should be precluded in limine pursuant to F.R.E. 401-403, 408. 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

MEMORANDUM OF POINTS AND AUTHORITIES This litigation arises out of the death of Kelly Mikkelsen while in the Yuma County jail. Mr. Mikkelsen took an overdose of drugs while on work release. Despite multiple frantic calls and live visits from Kelly's wife and others attempting to get help for Kelly, no one provided any medical assistance to Mr. Mikkelsen and he died. Plaintiffs filed claims against the Former County Defendants and the CHR defendants (CHR had an exclusive contract with the County to operate its medical department) for negligence, medical malpractice, and violation of Kelly's civil rights. Plaintiffs have now settled their claims against the Former County Defendants. The CHR Defendants may attempt to introduce evidence or argue that the plaintiffs have settled their claims against the Former County Defendants. Any such evidence, argument or reference has no probative value and any arguable probative value would be substantially outweighed by the risk of unfair prejudice and the danger of confusing or misleading the jury, and should be precluded. The prejudicial effect of evidence that another defendant settled out before trial is well known. Dunn v. Maras, 182 Ariz. 412, 897 P.2d 714 (App. 1995). In Dunn, a juror in a medical malpractice case against a doctor found out that a hospital had settled with the plaintiff prior to trial and shared that information with the other jurors. The Arizona Court of Appeals
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concluded that there was a reasonable probability that the settlement information might have affected the jury's verdict, and the trial court erred as a matter of law in denying a motion for new trial. "It is well understood by lawyers and judges experienced in such matters that in a case where evidence is offered of the payment of a substantial sum for a covenant not to sue, the jury considers it evidence that the covenantee is the party responsible for the injury, and that defendant or defendants should be exculpated." Egurrola v. Szychowski, 95 Ariz. 194, 199, 388 P.2d 242, 245 (1964) (quoting DeLude v. Rimek, 351 Ill. App. 466, 115 N.E.2d 561(Ill. 1953)). Alternatively, jurors might have concluded that plaintiffs had achieved a substantial settlement from an institutional defendant and were merely overreaching by pursuing the individual [defendants]. It would be speculative to suggest that members of the jury drew one rather than another of these conclusions, but it is not speculative to recognize the possibility that they might have drawn any of these conclusions. Dunn v. Maras, 182 Ariz. at 422, 897 P.2d at 724. The Court of Appeals concluded that the trial court should have granted a motion for new trial in light of the taint of the settlement information on the jury's deliberations, noting that both liability and damages determinations may have been affected by the inadmissible information: As indicated above, Roberts's disclosure of Samaritan's settlement might have led some jurors to conclude either that the only culpable defendant had settled, see id., or that the plaintiffs were overreaching by continuing the case. By either means, the information might reasonably have shaped the jury's conclusion on causation. Plaintiffs were not obliged to show an affirmative probability of such an effect; they were obliged to show only a reasonable possibility. They did so, and the trial court erred by denying their motion for new trial. Dunn, 182 Ariz. at 423, 897 P.2d at 725. Accordingly, it is well-established that such evidence is not probative and is highly prejudicial. Moreover, the rules of evidence expressly prohibit the introduction of evidence of settlement in order to prove (or disprove) liability. (F.R.E. 408; see also F.R.E. 410.) The fact that a defendant has been sued does not prove the defendant negligent, and there are many reasons why a defendant might choose to settle a case short of trial and proof of negligence. Evidence of suit and/or settlement has little probative value on the issue of liability and the danger of unfair prejudice
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substantially outweighs any limited probative value.

Whatever may be the

attempted justification, the primary purpose and effect of introducing evidence of the claims against the other defendants and settlement of those claims would be to convince the jury that the settling defendants were actually negligent--i.e., to prove their liability to plaintiff. Accordingly, the Court should exclude such evidence in this case per F.R.E. 403 and/or 408. Plaintiffs anticipate that Defendants may argue that Henry v. HealthPartners of S. Arizona, 203 Ariz. 393, 55 P.3d 87 (App. 2002) renders evidence of settlement with a former defendant admissible. Henry simply affirms the long-standing rule that evidence of settlement may be admitted when it is not admitted to show liability, but for some other relevant reason, assuming, of course, that the relevance outweighs the obvious prejudice. Nothing in Henry indicates that evidence of settlement is always relevant or admissible. Nothing in Henry changes the fact, recognized in Dunn, that admission of settlement evidence is prejudicial and contrary to the public policy of encouraging settlement. And nothing in Henry excuses the trial court from performing the balancing test required by rule 403. See, Shotwell v. Donahoe, 420 Ariz. Adv. Rptr. 17, 85 P.3d 1045 (2004)(once an objection is made, the trial court is required to balance any relevance against the factors in rule 403). In Henry, evidence of the allegations of the complaint against a settling defendant (from which jurors were obviously able to conclude that plaintiff had settled with that defendant) was admitted, but only because, as the court repeatedly made clear, the plaintiff's "trial strategy" of minimizing the fault of the settling defendant, was inconsistent with the plaintiff's prior position: "litigants must be held `accountable' for setting forth one version of the facts to obtain settlement and describing another version at trial." 203 Ariz. at 397, 55 P.3d at 91, quoting Hernandez v. State, 52 P.3d 765 (2002). In the two paragraphs (14 and 15) approving the discretionary admission of the allegations of the complaint, the Henry
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court referenced the inconsistent "trial strategy" used by plaintiff, either expressly or indirectly, five times. It was this inconsistent position that made the allegations relevant, and gave the trial court discretion to admit the evidence after performing the weighing test required by Rule 403. Evidence of settlement may be relevant on a number of potential issues, but no such issue is present in this case. For example, in cases where a witness has actually changed his position or testimony following settlement, such evidence may be admitted to explain the change in testimony, and many courts have done so. But those same courts also have discretion to exclude that evidence, and such exclusion would just as easily have been affirmed on appeal. The Henry court, for example, actually affirmed the trial court's ruling granting a new trial (although it did so based on the timing of the trial court's change in position admitting the evidence). Accordingly, even if evidence of settlement has some relevance, the admission of settlement evidence lies, as always, within the sound discretion of the trial judge, and is subject to the weighing process required by rule 403. In this case, no witness has changed his testimony, and plaintiffs have no intention of changing the position they have taken from the complaint onward, that the Former County Defendants were negligent and that their negligence was a cause of Kelly Mikkelsen's death. Plaintiffs' allegations against the Former County Defendants, therefore, are not inconsistent with Plaintiffs' current position and cannot be considered an "admission." And there is no testimony to impeach with evidence of settlement, since no witness has changed his or her testimony following the settlement. If that were to happen at trial, and the CHR Defendants could show that the testimony actually changed, then they would have an argument that evidence of the previous suit against the Former County Defendants and settlement with them is relevant and should be admitted to impeach. In which case, this court will have to weigh any probative value against the certain prejudice caused by the admission of such evidence. But until that happens, there is no relevance to the
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information, and its admission is highly and unfairly prejudicial, misleading and confusing. The rules of evidence expressly prohibit the introduction of evidence of settlement in order to prove (or disprove) liability for good reason ­ evidence of settlement is not necessarily probative of liability. (F.R.E. 408; see also F.R.E. 410.) Since it is not probative of liability, evidence of settlement is not particularly strong impeachment evidence, and its probative value is readily outweighed by the prejudicial effect of making the plaintiffs appear greedy and overreaching simply because one defendant elected to settle and save the expense of a trial. Whatever may be the attempted justification, the primary purpose and effect of introducing evidence of the claims against the other defendants and settlement of those claims would be to convince the jury that the settling defendants were actually negligent-i.e., to prove that the settling defendant was really the guilty party (not the remaining defendant), and/or that plaintiffs are greedy and overreaching because they have already been paid. Accordingly, the Court should exclude such evidence in this case per F.R.E. 401-403 and/or 408. The CHR Defendants would have been free to argue causation and fault of the Former County Defendants (without disclosing the fact that they were sued and settled), but the CHR Defendants did not name the Former County Defendants as non-parties at fault, and have not preserved the issue for trial. (See the form of joint proposed final pretrial order filed by Plaintiffs Mikkelsen on October 17, 2005.) Since the Former Former County Defendants are not non-parties at fault, the CHR Defendants cannot argue their fault or liability at trial. Accordingly, the CHR

Defendants are not only precluded from mentioning that the Former Former County Defendants were sued and settled, but the remaining defendants also cannot argue that the jury should assign any fault to the former defendants. Plaintiffs request that this Court preclude, in limine, any testimony, evidence or argument regarding the fact that the Former County Defendants were parties and
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agreed to settle claims against them in this lawsuit, in order to prevent the incurable damage that such evidence would cause if elicited at trial. The information simply is not relevant, is unfairly prejudicial, confusing and misleading, and tends to undermine the well-established public policy of fostering settlement. F.R.E. § 401403, 408. 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 18 Phoenix, Arizona 85003
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A. James Clark, Esq. CLARK & MOORE 256 South Second Avenue, Suite E Yuma, Arizona 85364 Attorneys for Plaintiffs Rebecca Mikkelsen, et al, . James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich

Michael J. Aboud Esq. ABOUD & ABOUD 100 North Stone Avenue, #303 27 Tucson, Arizona 85701 Co-Counsel for Plaintiff Fox
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Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 2 150 W. Second Street Yuma, Arizona 85364 3 Co-Counsel for Plaintiff Fox
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