Free Motion to Enforce - District Court of Arizona - Arizona


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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

JOINT PROPOSED FINAL PRETRIAL ORDER

(Assigned to the Honorable James A. Teilborg)

The following is the lodged Joint Proposed Final Pretrial Order to be considered at the
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Final Pretrial Conference set for November 7, 2005 at 4:00 p.m.
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Case 2:02-cv-02252-JAT

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A.

COUNSEL FOR THE PARTIES.

Plaintiffs:

John A. Micheaels Beale Micheaels & Slack PC 1440 E. Missouri, Ste. 150 Phoenix AZ 85014 Telephone: (602) 650-2465 Facsimile: (602) 285-1516 Attorneys for Plaintiff Dennis Mikkelsen A. James Clark, #002901 CLARK & MOORE 256 South Second Avenue, #E Yuma, AZ 85364 Telephone: (928) 783-6233 Facsimile: (928) 783-0533 Attorneys for Plaintiff Rubecca Mikkelsen on behalf of Miles, Jerret and Allison Mikkelsen, the minor children of Kelly Mikkelsen Michael J. Aboud Esq. ABOUD & ABOUD 100 North Stone Avenue, #303 Tucson, Arizona 85701 Telephone: (520) 623-5721 Facsimile: (520) 623-5727 Co-Counsel for Plaintiff Tracy Fox on behalf of Taylor Fox Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 150 W. Second Street Yuma, Arizona 85364 Telephone: (928) 329-7838 Facsimile: (928) 539-9284 Co-Counsel for Plaintiff Fox

Defendant: William W. Drury, Jr., Esq. James W. Barnhouse, Esq. RENAUD, COOK & DRURY, P.A. 40 North Central Avenue, #1600 Phoenix, Arizona 85004 Telephone: (602) 307-9900 Facsimile: (602) 307-5853 Attorneys for Defendant Correctional Health Resources, Inc.

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B.

STATEMENT OF JURISDICTION. 1. This action was removed pursuant to 28 U.S.C. § 1441(a) and this Court

has jurisdiction pursuant to 28 U.S.C. § 1331, federal question jurisdiction arising from Plaintiffs' civil rights claim under 42 U.S.C. § 1983. 2. Until Defendants filed their recent Motion Suggesting Lack of Jurisdiction,

jurisdiction was not disputed. Plaintiffs take the position that there is jurisdiction, as set forth in plaintiffs' response to defendants' motion suggesting lack of jurisdiction and motion to remand.

C.

STIPULATIONS AND UNCONTESTED FACTS AND LAW.

1.

The following facts are admitted by the parties and require no proof:

This case arises from the death of Kelly Mikkelsen. This case has been brought by Rubecca Mikkelsen, surviving wife of Kelly Mikkelsen, on behalf of Kelly's minor children, Mikkelsen, Jerret Mikkelsen, Allison Mikkelsen and Taylor Fox, and father Dennis Mikkelsen. Kelly Mikkelsen died on October 11, 2001, at 34 years of age. Kelly was being held at the Yuma County Detention Center, and was on work release status at the time of his death. Defendant CHR is a corporation that had an exclusive contract to provide health care and medical services to inmates at the Yuma County Detention Center. CHR was operated by Defendant Ken Faiver. Defendant Faiver was the President of the company, and was responsible for CHR's overall operations, including its contract with the Yuma County Sheriff's Office. Defendant Dr. Joseph Rich was CHR's Medical Director and was charged with supervising the provision of medical services provided to the inmates at the Yuma County Detention Center. Kelly died of an overdose of two prescription drugs: Darvon (a narcotic painkiller) and Valium (a central nervous system depressant used for anxiety). Mr. Mikkelsen took the drugs while he was out on work release from the Detention Center on October 11, 2001 because of severe depression. When Kelly arrived home from the detention center about 6:30 a.m. on October 11, 2001,
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he was slurring his words, stumbling, he fell down some stairs. Kelly also told Rubecca that he had taken 49 pills, later saying that he might have taken 40 or only 4 and that she would never know, since she had not seen him take them. Kelly Mikkelsen was so obviously intoxicated, that Rubecca Mikkelsen had a friend call 911 for assistance, but Mr. Mikkelsen left before help could arrive. Late that morning, Rubecca actually drove to the Yuma County Detention Center and spent an hour or an hour and a half explaining her concerns to Lt. Penny Anders and advised that Kelly Mikkelsen was suicidal and had possibly taken as many as 49 Valium pills. About 11:00 a.m., a Yuma County detention officer advised Defendant CHR nurse Art Rodriguez, R.N., that Mr. Mikkelsen may have overdosed on Valium while out on work release. Nurse Rodriguez made a note of the reported overdose on Mr. Mikkelsen's medical chart, along with the information that he had had an unsteady gait the night before. The chart entry about the reported overdose reads: Approx 1100 S.O. [Senior Officer] Graham informed Med Dept; pt had apparently overdosed on meds while out on work release; pt's wife had called the facility to inform re: pt's overdose on pills; S.O. Graham unsure if pt. coming back this evening or...where pt. works; plan ­ assess pt if here this evening & PRN [treat as needed]. CHR nurse Rodriguez red-flagged the chart with a note to "Check patient this evening when he returns to facility..." and a reference to the nursing notes, which explained Mr. Mikkelsen's possible overdose. At shift change about 2:00 p.m., on October 11, 2001, Nurse Rodriguez updated CHR's Licensed Practical Nurse, Cheryl Kinsley, LPN regarding Mr. Mikkelsen's possible overdose and the need to assess him immediately upon his return to the Yuma County Detention Center. Mr. Mikkelsen was dropped off at the Detention Center by co-workers just before 6:00 p.m. on October 11, 2001. Mr. Mikkelsen was obviously impaired/intoxicated when he returned to the Detention Center and detention officers were aware that he had taken Valium and was suicidal. Although Mr. Mikkelsen told officers he had taken only two or three Valium, even the detention officer who wrote up a "Risk Assessment Notice" noted "seems like he took more than
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that." The detention officer also noted that Kelly was "going through hard times real upset and depressed had talked about committing suicide about a week ago claims to have taken two Valiums to relax seems like he took more than that seems real sleepy not stable to walk keep a very close eye on him might try to do something foolish." The same report noted that Mr. Mikkelsen was confused/disoriented, depressed, suicidal, subject to potential drug withdrawal, on suicide/seizure watch, and should be referred to the medical department for special medical watch, evaluation and/or treatment. The detention officers then put Kelly, who was unsteady on his feet, in a wheelchair and wheeled him to the medical department for a medical evaluation. The only CHR employee in the Detention Center medical department when Mr. Mikkelsen arrived there between 6:00 and 6:30 p.m. was Ofel Diaz. Ms. Diaz had no medical training and was not qualified to assess Mr. Mikkelsen's condition. The detention officers gave

Ms. Diaz all the information they had, including the fact that it looked like Kelly had taken more than a few Valium and that he was suicidal. Ms. Diaz did not contact either of the nurses on duty to evaluate Mr. Mikkelsen, and did not ask the detention officers to leave Kelly in one of the two medical observation cells. The detention officers placed Kelly in solitary confinement, and, because they were aware that Mr. Mikkelsen was suicidal, they put him on a suicide watch. Sometime before 7:00 p.m., a CHR employee, Kelly Bragan, R.N. saw Mr. Mikkelsen being placed in isolation and put into a suicide suit sometime before 7:00 p.m. Nurse Bragan noted that Kelly was visibly impaired, but did not examine him. Nurse Bragan went back to the medical department, checked out and went home about 8:00 p.m. Another CHR employee, Cheryl Kinsley, L.P.N., returned to the medical department at about 9:00 p.m. At that time, Ms. Diaz told Nurse Kinsley that Mr. Mikkelsen had been brought to the medical department for evaluation and that Ms. Bragan should see him to check on his hands, which had been cut earlier in the day. Nurse Kinsley went to Kelly's cell to examine his hands. Sometime after 9:00 p.m. when she arrived, Nurse Kinsley found Kelly comatose, with no vital signs. The autopsy revealed that Kelly died from complications relating to a mixed drug overdose from Valium and Darvon.
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Plaintiffs contend that Defendants CHR, Faiver, Rich and their agents were negligent and violated Kelly Mikkelsen's civil rights by failing to provide adequate and competent medical services for Mr. Mikkelsen, and by failing to timely and properly assess Mr. Mikkelson's emergent medical condition on October 11, 2001 and get him to the Yuma Regional Medical Center emergency department where he would have been properly treated and his life saved. If Mr. Mikkelsen had been transferred to the emergency department at Yuma Regional Medical Center before 8:00 p.m., on October 11, 2001, he would not have died. Plaintiffs are seeking damages to compensate for the loss of Mr. Mikkelsen's love, support, guidance and companionship, as well as their own grief, pain and suffering at the loss of their son and father. Plaintiffs are also seeking punitive damages based upon the defendants' callous, intentional, and/or reckless indifference to Mr. Mikkelsen's health and safety. 2. The following facts, although not admitted, will not be contested at trial by

evidence to the contrary:

3.

The following issues of law are uncontested and stipulated to by the parties:

See the parties' joint proposed jury instructions filed contemporaneously herewith. The parties agree that the following are the basic elements of proof for Plaintiffs' legal claims: NEGLIGENCE: Plaintiffs' must show duty, breach and damages proximately caused by

Defendants CHR, Faiver, Rich and/or their agents. MEDICAL NEGLIGENCE: Plaintiffs must show duty, breach and damages proximately

caused by the medical negligence on the part of Defendants CHR, Faiver, Rich and/or their agents. CIVIL RIGHTS VIOLATION: Denial of medical attention to a prisoner violates the Eighth Amendment "if the denial amounts to deliberate indifference to serious medical needs of the prisoner." Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), citing Estelle v. Gamble, 429 U.S. 97, 106, 97
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S.Ct. 285 (1976), cert. denied, 481 U.S. 1069 (1987). A "serious" medical need exists if the failure to treat a prisoner could result in further significant injury, or the unnecessary and wanton infliction of pain. Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 2481 (1993), citing Estelle, 429 U.S. at 104-05. "Deliberate indifference" is something more than mere negligence and "something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id., 511 U.S. at 835, 114 S. Ct. at 1978. Deliberate indifference is equated with recklessness. Id. (citations omitted). And while "deliberate indifference" is subjective, it does not require a showing that the defendants acted or failed to act believing that harm would actually befall an inmate ­ "it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id., 511 U.S. at 842, 114 S.Ct. at 1981. Deliberate indifference occurs when prison officials deny, delay or intentionally interfere with medical treatment, or in the way in which prison officials provide medical care. McGuckin v. Smith, 974 F.2d 1050, 1062 (9th Cir. 1992), overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997); Hunt v. Dental Dept., 865 F.2d 198 (9th Cir. 1989); Hutchinson v. U.S., 838 F.2d 390, 394 (9th Cir. 1988). Deliberate indifference may also be shown by a representative's attitude and conduct in response to a prisoner's serious medical need. Helling, supra, 509 U.S. 25, 32-33, 113 S.Ct. 2475 (1993); Estelle, 429 U.S. at 104-05. It is not sufficient for the defendants to deny knowledge where there is evidence from which such knowledge may reasonably be inferred, for example, where the risk is obvious. Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). And, where the risk is obvious, expert medical testimony is not required. Campbell, supra, 169 F.3d at 1372. Individual defendants may be liable for violation of the Eighth Amendment if they proximately caused the deprivation of the right to medical care. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Individual liability may be based on (1) direct deprivation of rights by the individual, (2) an individual supervisors' failure to properly train or supervise personnel, resulting in the alleged deprivation, (3) an official policy or custom for which the defendant was responsible, or (4) the defendant's failure to act to prevent misconduct, knowing that it had
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occurred in the past or would occur in the future. See, Harris v. Roseburg, 644 F.2d 1121, 1125 (9th Cir. 1981); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984); Taylor v. List, 880 F.2d 1040 (9th Cir. 1989). Understaffing, inadequate training, and other systemic deficiencies may provide a basis for Eighth Amendment liability, not only for policy makers such as Defendants Faiver and Rich, but also for CHR as an entity. Ginest v. Board of County Commissioners of Carbon County, 333 F. Supp. 1190, 1198, 1204 (D. Wyo. 2004), citing Board of County Commissioners v. Brown, 520 U.S. 397, 403-04 117 S.Ct. 1382 (1997) (reaffirming that a municipality may be held liable for deprivations resulting from those officials whose acts may fairly be said to be those of the municipality); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) cert. denied, 450 U.S. 1041, 101 S. Ct. 1759 (1981). Where liability arises from such systemic deficiencies, there is no need to prove any subjective knowledge of possible injury to the prisoner. Id.; Gibson v. County of Washoe, 290 F.3d 1175, 1195 (9th Cir. 2002) (plaintiff not required to prove subjective knowledge to show deliberate indifference on claim against municipal liability for inadequate medical care). See also, Ginest, supra, citing City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197 (1989). Systemic and longstanding inadequacies create such a high risk of future injury that deliberate indifference must be inferred. Ginest, citing Farmer v. Brennan; Todaro v. Ward, 565 F.2d 48, 52 (2nd Cir. 1977); Skinner v. Uphoff, 234 F. Supp. 2d 1208, 1215-16 (D. Wyo. 2002). Even individual defendants who were not in supervisory positions cannot avoid subjective knowledge of the risk of future harm to an inmate, by failing to investigate or verify the underlying facts. A defendant must either abate the risk, or, if the individual is uncertain as to its depth or degree, the individual must investigate. Ginest, 333 F. Supp. 2d at 1198, citing Farmer v. Brennan, 511 U.S. at 842. Accordingly, subjective knowledge of the risk of serious future harm to Mr. Mikkelsen may be shown, not only by admissions by the defendants, but also by the fact that information was available or known to the defendants, or that the danger was obvious, or that the defendants failed to investigate and verify the facts and so avoided obtaining subjective knowledge.
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"The question under the Eight Amendment is whether [CHR representatives], acting with deliberate indifference, exposed a prisoner to a sufficiently substantial `risk of serious damage to his future health,'...and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk...for reasons personal to him or because all prisoners in his situation face such a risk." Farmer v. Brennan, 511 U.S. 825, 843, 114 S. Ct. 1970, 1981 (1994) (citation omitted). D. CONTESTED ISSUES OF FACT AND LAW.

1. The following are the issues of fact (or mixed questions of fact and law) to be tried and decided:

Issue No. 1: Whether Defendant CHR's agents and individual healthcare providers (Kinsley, Bragan, and/or Diaz) breached the applicable standard(s) of care in providing medical 11 services to Mr. Mikkelsen on October 10 and 11, 2001.
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Plaintiffs contend that: The CHR staff, including Kelly Bragan, R.N., Cheryl Kinsley, L.P.N. and Ofel Diaz all fell below the applicable standard of care in failing to act upon Kelly Mikkelsen's reported/documented drug overdose and in failing to ensure that Kelly was evaluated immediately upon his return to the Yuma County Detention Center at approximately 6:00 p.m. Ms. Diaz fell below the applicable standard of care in failing to report Kelly's presentation to the medical department for evaluation and in failing to notify the nurse in charge of his obviously impaired condition and need for urgent medical attention. Nurse Bragan fell below the applicable standard of care in failing to perform a nursing assessment when she observed Kelly's impaired and incapacitated condition, or seeing that Nurse Kinsley did so, thus failing to ensure appropriate medical care and treatment of Kelly's drug overdose. L.P.N. Kinsley, who knew about Mr. Mikkelsen's potentially life-threatening drug overdose and the need for a medical evaluation from at least 2:00 p.m. in the afternoon, fell below the standard of care in failing to act upon that information and see that Mr. Mikkelsen was evaluated immediately upon his return to the detention center. The failure of CHR's Nurse Bragan, L.P.N. Kinsley and Ofel Diaz, to comply with a
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CHR policy and procedure regarding Intoxication and Withdrawal was also negligent. Defendants contend that:

Issue No. 2: Whether Defendants CHR, Faiver, Rich and/or their agents breached the standard of care applicable to detention healthcare providers in terms of hiring, staffing, training, 4 supervision, and/or other administrative aspects of its duties to Mr. Mikkelsen in connection with the provision of medical services.
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Plaintiffs contend that: CHR, Faiver and Rich breached the standard of care in failing to fulfill its contractual agreement with the Yuma County Sheriff's Office Detention Center. Mr. Faiver and CHR promised the "full attention" of CHR's Corporate Medical Director, Dr. Rich. Mr. Faiver testified that Dr. Rich devoted fewer than 10 hours per month to his entire role as CHR's Corporate Medical Director. He apparently spent much less time than that on the Yuma County Contract. In fact, there is no evidence that Dr. Rich was ever involved in policy, procedure or supervision at the YCDC. Dr. Rich did not even participate in the mortality review regarding Kelly Mikkelsen's death. Dr. Rich has had action taken on his medical license in numerous states and has a criminal history in at least two states. At the time of CHR's Contract with Yuma County, Dr. Rich was not qualified to act as a "corporate medical director" for a correctional health care operation. CHR, Faiver and Rich failed to comply with Article 4, Staffing Requirements, of the Contract for Health Services, which specifies the Provider must provide adequate health care personnel to provide the Health Services and that the Provider will engage only licensed and qualified personnel to provide Health Services. The Contract specifies, "The Provider shall have a registered nurse on duty at the Detention Center at all times." CHR, Faiver and Rich fell below the standard of care in failing to provide a registered nurse on duty at the Detention Center at all times, including the evening of Mr. Mikkelsen's death, since no registered nurse was available to evaluate him. CHR, Faiver and Rich were also negligent in failing to provide other adequate health care personnel to care for the inmates of the Detention Center, including Kelly Mikkelsen. CHR fell below the standard of care in failing to hire and employ only licensed and
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qualified personnel to provide Health Services. Ms. Diaz, for example, was not, and had never been, trained, qualified or certified as a Nursing Assistant. CHR's knowing retention of an unqualified individual (Ms. Diaz) to act as a CNA fell below the required standard of care. CHR's physician hours were also insufficient -- a jail with more than 400 inmates required at least 20 hours of physician coverage per week, not the 3 to 5 hours per week provided by Dr. Babiker. Dr. Greifinger will testify that Defendants Faiver and CHR claimed that it would vest the day-to-day responsibilities for medical direction at the Yuma County Detention Center with the local medical director, Dr. Babiker. By limiting his time on-site to six hours per week, it was clear that Defendant CHR, had no intention of fulfilling this contractual obligation. It is not possible to adequately provide primary medical care and medical direction in a facility the size of the Yuma County Detention Center (with 400 to 500 inmates on average) with six physician hours per week. Dr. Babiker, the "responsible physician," did not participate in, write and/or sign the mortality review concerning Kelly Mikkelsen's death or the subsequent hanging of inmate Gonzales, which fell below the applicable standard of care and violated CHR's contractual obligations to the YCSO. CHR, Faiver and Rich failed to provide adequate coverage by a physician's assistant. There was no clinical oversight by either Dr. Babiker or Mr. Linde, the physician assistant who worked only 10 to 12 hours per week, not even close to the 30 hours mandated by CHR's contract with Yuma County.. CHR, Faiver and Rich were also negligent in failing to provide adequate supervision of nursing personnel and for permitting L.P.N. Kinsley to function in the role of Charge Nurse on October 11, 2001. This is in direct violation of the Arizona Nurse Practice Act: ARS 32-1601 (12) (13) requiring R.N. supervision of the L.P.N. The Nurse Practice Act specifies functions that can be legally performed by the L.P.N. under the supervision of a physician or a R.N. in accordance with ARS 32-1601 (12). L.P.N. Kinsley was not adequately supervised and was not qualified to function in the role of Charge Nurse on October 11, 2001.

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CHR also fell below the standard of care in failing to properly educate and train the Yuma County Detention Center nursing personnel in the assessment, monitoring and treatment of patients under the influence of drugs and/or alcohol, in suicide prevention and in recognizing potentially life threatening medical conditions requiring transfer to an acute care facility. CHR, Faiver and Rich's failure to train its medical staff in detention center policies and failure to have the detention center's physician conduct a mortality review of the death of Mr. Mikkelsen and/or a Mr. Gonzalez, who later hanged himself in the jail, was likewise negligent. CHR, Faiver and Rich failed to enact adequate policies and procedures and failed to properly train its medical staff, in violation of the applicable standard of care. CHR, Faiver and Rich represented that it would conduct a thorough audit of the health services operations of the facility at the outset of the contract period. There is no documentation that this occurred. CHR was to establish a Continuous Quality Management program, which never occurred. The CHR Corporate Medical Director was to periodically review a sample of medical records. There is no documentation that this ever occurred. CHR, Faiver and Rich fell below the applicable standard of care in failing to meet these contractual obligations. Defendants contend that:

Issue No. 3: Whether Defendants CHR, Faiver, Rich and/or their agents violated Mr. Mikkelsen's civil rights under 42 U.S.C. § 1983 through violation of the Eight Amendment of 18 the U.S. Constitution.
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Plaintiffs contend that: CHR, Faiver, Rich and their agents violated Mr. Mikkelsen's 8th Amendment right to basic medical care while incarcerated by Yuma County, not only by failing and refusing to get all the information they needed to locate and treat him, by failing to assess his condition immediately upon his return, and/or by failing to treat him before his death on October 11, 2001, but also by failing to create and implement appropriate policies and procedures and by failing and refusing to provide adequate and competent/adequately-trained and/or supervised staff who could and would have assessed and treated him and prevented his death. In doing so, CHR, Faiver and Rich knew that they subjected Mr. Mikkelsen to a substantial risk of serious harm. CHR, Faiver and Rich's deliberate deviations from its contract with Yuma County were
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neither accidents nor oversights. Dr. Rich, the supposed "Medical Director" of CHR did nothing ­ no training, no supervision, nothing, to supervise the Detention Center medical department. Indeed, Rich never even lived in Arizona, so was never in a position to provide any meaningful supervision. The employment contracts of Dr. Babiker and Mr. Linde, (not to mention the intentional employment and holding-out of Ms. Diaz as a "CNA") attest to the willful and purposeful decision to provide far less medical service than was required by CHR's contract and by the applicable common-law standards of care. This purposeful failure to provide services on a million-dollar contract represents "deliberate indifference" and deprived the inmates, including Kelly Mikkelsen, of their constitutional right to receive appropriate and necessary medical care. CHR and its nurses Bragan and Kinsley both had knowledge that Mr. Mikkelsen was impaired and suicidal, but neither took steps to find out what his condition might be, let alone treat him, or see that he got treatment for that condition. And Ms. Diaz, who also knew of Mr. Mikkelsen's impairment and suicidal state, like the rest of CHR's staff, did nothing. Indeed, Ms. Diaz openly displayed her complete and utter unconcern for Mr. Mikkelsen's health and welfare when she advised his distraught wife that the Detention Center was not a hospital, and if he was going to die, he would die. The foregoing actions by CHR, its policy makers (Faiver and/or Rich), and its front-line employees, demonstrate a deliberate indifference and conscious and callous disregard for the safety, health and well-being of the YCDC inmates, including Kelly Mikkelsen, and deprived them of their constitutional right to receive appropriate and necessary medical care. Indeed, even CHR's own expert agrees that numerous acts by CHR and its representatives (especially Ken Faiver and Ofel Diaz) exhibited deliberate indifference to, or reckless disregard for, the serious risk that CHR's action/inaction posed to detention center inmates generally and to Mr. Mikkelsen specifically. Defendants contend that:

Issue No. 4: Whether the aforementioned wrongful conduct on the part of Defendants CHR, Faiver, Rich and/or their agents was a proximate cause of the death of Kelly Mikkelsen and 27 damage to plaintiffs.
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Plaintiffs contend that:
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CHR's failure to provide adequately qualified nursing personnel directly caused and/or contributed to Kelly Mikkelsen's death. The only CHR employee who "assessed" Kelly upon his return to the Yuma County Detention Center and prior to his death on October 11, 2001, was Ms. Diaz, an employee who admittedly had no training, no qualification and/or competency to function in the role of Certified Nursing Assistant and/or Nursing Assistant. Had Defendant CHR fulfilled its contractual agreement to provide sufficient, competent, adequately trained staff, including R.N. staffing 24 hours per day, 7 days per week, at the Yuma County Detention Center, Kelly Mikkelsen should and most likely would have been evaluated by a qualified nursing professional prior to his death on October 11, 2001 and therefore his death would have been prevented. If Diaz, Nurse Bragan, and/or Nurse Kinsley had either obtained or provided a proper medical evaluation of Mr. Mikkelsen on his return to the Detention Center, and/or complied with CHR policy, Mr. Mikkelsen would not have died. If Mr. Mikkelsen had been timely and properly evaluated and transferred to the emergency department at Yuma Regional Medical Center for emergency treatment, he not only could have been saved (even as late as approximately 8:00 p.m.) but in all probability would not have died. Defendants contend that: Issue No. 5: The amount of monetary damages to fully and fairly compensate Plaintiffs for the death of Kelly Mikkelsen and their resulting loss. Plaintiffs contend that: As a result of Kelly Mikkelsen's death, Plaintiffs Miles Miikkelson, Jarrett Mikkelson, Allison Mikkelsen, Dennis Mikkelsen and Taylor Fox are entitled to the full amount of money that will fairly and reasonably compensate each of them for the following elements of damages: 1. The loss of love, affection, companionship, support, care protection and guidance since Kelly's death and in the future. 2. The pain, grief, sorrow, anguish, stress, shock and mental suffering already experienced and reasonably predicted to be experienced in the future.
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3.

The financial support and household services already experienced and reasonably probable to be experienced in the future.

4.

The reasonable expense of funeral and burial.

Plaintiffs are also seeking to recover their reasonable attorney's fees under 42 U.S.C.§ 1983 for Defendant CHR's violation of Kelly Mikkelsen's civil rights, along with their recoverable costs, in this action. Defendants contend that:

Issue No. 6: Whether the conduct of Defendants CHR, Faiver, Rich and/or their agents, was intentionally, recklessly, and/or callously indifferent, so as to warrant the imposition of punitive 9 damages for violation of Mr. Mikkelsen's civil rights.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs contend that: CHR, Faiver and Rich had no intention of meeting CHR's Contract with Yuma County regarding staffing, credentialing, training and corporate medical director oversight. CHR, Faiver and Rich's deliberate deviations from CHR's contract with Yuma County cannot be explained by recruitment difficulties or occasional staffing lapses due to illness. These were neither accidents nor oversights. The employment contracts of Dr. Babiker and Mr. Linde, attest to the wilful and purposeful determination to knowingly provide far less medical service than what was required in the Contract with Yuma County and far less service than would be required to meet the applicable standard of care. Dr. Greifinger will testify this purposeful misrepresentation represents "deliberate indifference" and deprived the YCDC inmates, including Kelly Mikkelsen, their constitutional right to receive appropriate and necessary medical care. Dr. Greifinger will testify that Defendants' conduct was, in a word, "outrageous." CHR, Faiver and Rich's knowing failure to provide R.N. coverage 24 hours per day, 7 days per week, as mandated by the contractual agreement with Yuma County Sheriff's Office Detention Center fell below the applicable standard of care and evidences a deliberate indifference and callous disregard for the welfare, safety and protection of Yuma County Detention Center inmates, including Kelly Mikkelsen. CHR, Faiver and Rich's conduct in employing Ms. Diaz to work as a "C.N.A." at the Yuma County Detention Center was not merely a violation of the applicable standard of care but
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also evidences deliberate indifference and callous disregard for the welfare, safety and protection of inmates in the Yuma County Detention Center, including Kelly Mikkelsen. Ms. Diaz, through her inactions, incompetence and lack of training, denied Kelly Mikkelsen the emergency medical care and treatment he required and was constitutionally entitled to receive. Moreover, Ms. Diaz's remarks to Mrs. Mikkelsen when she called in an effort to get emergency medical attention for her husband, palpably demonstrate Ms. Diaz's deliberate indifference to, and callous disregard for, Mr. Mikkelsen's health and safety. Likewise, Nurse Bragan's deliberate indifference to and callous disregard of Kelly Mikkelsen's life-threatening emergency medical condition posed a substantial risk of serious harm to Kelly in violation of his constitutional rights. Nurse Bragan observed Kelly in an obviously impaired condition and failed to provide the appropriate emergency medical care he required and was constitutionally entitled to receive. And LPN Kinsley's deliberate indifference to and callous disregard of Kelly Mikkelsen's life-threatening emergency medical condition posed a substantial risk of serious harm to Kelly in violation of his constitutional rights. LPN Kinsley was advised of Kelly's reported drug overdose and need for an urgent medical assessment and failed to provide the appropriate emergency medical care he required and was constitutionally entitled to receive. At all times, the conduct of CHR and/or its agents was pursuant to custom and/or policy implemented, and/or ratified by CHR policy makers Faiver and/or Rich. Defendant contends that: Issue No. 7: Whether Plaintiff used due care. Plaintiffs contend that: The conduct of Plaintiff Rubecca Mikkelsen on October 11, 2001 was entirely reasonable and appropriate. On October 11, 2001 Rubecca Mikkelsen requested that a friend call 9-1-1 for assistance when she found out that her husband was obviously intoxicated/impaired. Rubecca Mikkelsen also drove to the YCDC and spent an hour or an hour and a half explaining her concerns to the Cetention Center personnel, advising them that she believed her husband was suicidal and had overdosed on Valium. This information was specifically given by the Yuma
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County Detention Center personnel to the CHR employees/agents on duty at approximately 11:00 a.m. on October 11, 2001. CHR nurse Art Rodriguez, R.N., specifically noted in Kelly Mikkelsen's medical chart Rubecca Mikkelsen's report of her husband's reported overdose, along with the information that he had had an unsteady gait the night before. Although Mr. Mikkelsen was obviously impaired/intoxicated when returned to the detention center at approximately 6:00 p.m. on October 11, 2001, he was compliant with the detention center personnel and CHR personnel, despite his obvious intoxication/impairment. Defendants contend that: Plaintiffs charge a multitude of personnel inside the jail with allegedly having the ability to obviously detect Mr. Mikkelsen's drug-intoxicated condition (despite his lies to them that he had taken no more than 3 Valiums) and charge those personnel with the responsibility for dealing with that situation. However, Mrs. Mikkelsen, who had heard directly from his own lips, that he had supposedly taken more than 40 Valium, apparently never thought to call dPS to request the he be pulled over. When the Mikkelsen's arrived at the Mexican border, Mrs. Mikkelsen indicated that Mr. Mikkelsen spoke with her briefly before he crossed the border. At that point she was in close proximity to him and one must question why she did not inform border crossing personnel and have them stop him because he was intoxicated and was a danger to himself or perhaps others. Why did she not tell such officers that he was actually an inmate from the Yuma County Detention Center who was escaping from the country (as he obviously was) in violation of his work release requirements. All of the events occurred on October 11, 2001, only one month after the sad and unfortunate events which crippled this whole nation and resulted in heightened security, especially relating to border crossings. Later on that same day, it is indicated that Kelly Mikkelsen reappeared in Yuma at Alexander Automotive. Mrs. Mikkelsen established that he was talking with Alexander Automotive personnel. If, as plaintiffs charge, it was so apparent that he needed medical attention, then why did she not at that time call emergency medical service (9-1-1), tell them of
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his significant drug ingestion, and ask to have assistance dispatched? Likewise, why did she not ask for the assistance of Alexander Automotive personnel to call for medical attention, or to drop him off at a medical facility for medical attention? Instead, the Alexander Automobile personnel apparently returned him to the jail at approximately 6:00 p.m. Jail personnel are then charged with failing to determine that he had sufficient drug ingestion that he needed immediate medical attention. Such assertions are made in spite of his continual insistence that he had taken no more than three Valium, and he made no mention of taking any other type of drug in conjunction with the Valium. The events that occurred during the relatively short period of time from 6:00 p.m. until approximately 9:00 p.m., are certainly not events in which jail personnel or CHR personnel are pleased. Not even plaintiffs have suggested that any of the jail personnel intentionally tried to cause Mr. Mikkelsen's death. Interestingly, however, plaintiffs appear to assert that defendants should have completely resolved Mr. Mikkelsen's problems during a period of approximately three hours when his family and friends made no attempt at resolution during the prior fourteen hours. Mr. Mikkelsen's death occurred October 11, 2001, through the desire of no one, except perhaps Mr. Mikkelsen himself. 2. The following are issues of law to be determined:

Issue No. 1. Whether Defendants have properly raised/preserved the defense of contributory negligence on the part of Plaintiff Rubecca Mikkelsen. Plaintiffs contend that: That Defendants did not raise as an affirmative defense in their Answers to Plaintiffs' Second Amended Complaint contributory negligence on the part of Rubecca Mikkelsen (or any of plaintiffs) and, therefore, are precluded by law from raising that defense at this time. Defendants contend that:

Issue No. 2: Whether the conduct of Kelly Mikkelsen and/or Rubecca Mikkelsen is a defense to Plaintiffs' claims of medical negligence, Plaintiffs' civil rights claim under the Eighth 27 Amendment, and/or Plaintiffs' punitive damages claim for violation of Kelly Mikkelsen's civil rights.
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Plaintiffs contend that: Plaintiffs' alleged contributory/comparative negligence is not a legal defense to Plaintiffs' claims of medical negligence and/or negligence against Defendants. Plaintiffs contend that Defendants were responsible for providing appropriate medical care and treatment to Kelly Mikkelsen, and Plaintiff Rubecca Mikkelsen's alleged contributory/comparative negligence is not a defense to Defendants' failure to do so. Second, Plaintiffs' contend that Rubecca Mikkelsen's alleged contributory/comparative negligence is not a defense to Defendants' violation of Kelly Mikkelsen's Eighth Amendment or the Plaintiffs claim that Defendants violated Kelly Mikkelsen's civil rights under 42 USC § 1983 through a violation of the Eighth Amendment of the U.S. Constitution. Third, Plaintiffs contend that Rubecca Mikkelsen's alleged contributory/comparative negligence is not a defense to Plaintiffs' punitive damages claim against Defendants; namely, that the conduct of Defendant CHR, Faiver, Rich and/or their agents was deliberate, reckless and/or callously indifferent, so as to warrant the imposition of punitive damages for violation of Kelly Mikkelsen's civil rights. Defendants contend that: Issue No. 3: Whether the Vulnerable Adult Statute is applicable to this lawsuit. Plaintiffs contend that: Plaintiffs contend that the Vulnerable Adult statute is applicable, as set forth in Plaintiffs' previously filed response to Defendants' Motion for Partial Summary Judgment regarding this issue. Plaintiffs recognize that the Court, by its Order dated August 30, 2005, determined as a matter of law that Plaintiffs' Vulnerable Adult statute claim is not applicable. Defendants contend that: Defendants contend that the vulnerable adult statute is not even remotely involved in this matter. That statute generally relates to involuntarily incapacitated or infirmed adults,

particularly the elderly, who are bed-ridden or feeble-minded. Mr. Mikkelsen does not fall into the category of a person who was feeble-minded or involuntarily infirmed. If such were true,

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then practically any inmate in any institute could claim to be a victim under the vulnerable adult statute.

Issue No. 4. Whether Defendants have timely asserted and/or waived and/or are estopped to effectively seek dismissal of Plaintiffs' Section 1983 claim, raised as a defense lack 4 of standing, lack of capacity of Plaintiff Rubecca Mikkelsen to bring the Section 1983 claim, and/or that Plaintiff is not the proper parties entitled to bring the Section 1983 claim.
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Plaintiffs contend that: Plaintiffs' position in this regard is set forth in Plaintiffs' response to Defendants' motion suggesting lack of jurisdiction and motion to remand, which is filed contemporaneously herewith and incorporated herein. Defendants contend that:

E. 1. (1) 1.

LIST OF WITNESSES

Plaintiffs' Witnesses: Witnesses who shall be called at trial: Robert B. Greifinger, M.D. (32 Parkway Drive, Dobbs Ferry, New York 10522) is an expert in correctional health care who will testify that the Defendant Correctional Health Resources (CHR) and its agents fell below the applicable standard of care and were negligent in providing medical care to the decedent Kelly Mikkelsen and that defendant CHR was negligent in failing to provide adequate and competent health care personnel at the YCDC. Dr. Greifinger will testify that defendant CHR and its agents violated Kelly Mikkelsen's Eight Amendment right to adequate medical care. Dr. Greifinger will testify that the negligence and deliberate indifference of defendant CHR and its agents was a proximate cause of Mr. Mikkelsen's death. Dr. Greifinger will also testify that the conduct of defendant CHR and its agents was in callous disregard for the health and welfare of Kelly Mikkelsen. Myrna L. Anderson Reed, RN-C, CRRN, MN (12 Perkins Drive, Prescott, AZ) is an expert in nursing, including correctional health nursing, who will testify that the defendant's nurses fell below the applicable standard of care and were negligent in failing to provide adequate and competent medical care rendered to the decedent. She will further testify that the negligence of the defendant CHR's nurses was a proximate cause of Mr. Mikkelsen's death. Steven Pike, M.D. (6830 N. Cascade Spring Place, Tcson, AZ 85718) is an expert in the fields of emergency medicine and toxicology who will testify that the death of Kelly Mikkelsen was preventable had appropriate and competent medical care been provided to him and that the failure to provide proper medical care was a proximate cause of his death. He will further testify that the Defendant CHR's staff showed deliberate indifference to the serious emergent medical condition of Kelly Mikkelsen in violation of Kelly Mikkelsen's Eighth Amendment right to adequate medical care.

2.

3.
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4.

Plaintiff Rubecca Mikkelsen (c/o A. James Clark, Esq.) is the widow of Kelly Mikkelsen and the mother of his two sons, Miles and Jarret and daughter Allison. She will testify as a fact witness about calling the Yuma County Detention Center and hospital with regard to the health and welfare of her husband Kelly Mikkelsen on the day of his death. She will further testify about the damages sustained by Miles, Jarret and Allison as a result of the death of their father. Plaintiff Dennis Mikkelsen (c/o John A. Micheaels, Esq.) is the father of Kelly Mikkelsen who will testify as a fact witness with regard to his damages as a result of the death of his son. John Buehler, Ph.D (2410 W. Ruthrauff, Suite 110V, Tucson, AZ) is an expert in economics who will testify with regard to the economic damages resulting from the death of Kelly Mikkelsen. Skip Heck, Ph.D. (4500 S. Lakeshore Dr., Suite 338, Tempe, AZ 85282) is a psychologist who will testify as an expert with regard to the psychological and emotional damages sustained by Miles and Jarret Mikkelsen as a result of the death of their father. Tracy Fox-Tanga (c/o Michael Aboud, Esq.) is the mother of Taylor Fox, the daughter of Kelly Mikkelsen and will testify as a fact witness with regard to the damages sustained by her daughter as a result of the death of Mr. Mikkelsen. Dr. Linda Sampliner, Ed.D., (12450 Rancho Vistoso Blvd., Oro Valley, AZ 85737) is a psychologist and grief specialist who will testify as an expert with regard to the psychological and emotional effects of Kelly Mikkelsen's death on Taylor Fox. The following witnesses may be called at trial: Custodians of record and/or other witnesses to lay foundation (if necessary) for any exhibit. Ken Faiver (c/o James W. Barnhouse, Esq.) is one of the owners of the Defendant Correctional Health Resources (CHR) who may testify as a fact witness about the ownership and management of CHR, about the contract between CHR and Yuma County, regarding the policies of procedures of CHR and with regard to the staffing, training, and hiring of CHR employees and agents at the Yuma County Detention Center. He is also expected to testify in accordance with his deposition and any statements he has given. Kelly Bragan (1152 E. Hacienda Drive, Yuma, AZ) is a nurse who was employed by CHR at the time of Kelly Mikkelsen's death who will testify as a fact witness with regard to her actions on the day of his death and the circumstances surrounding his death. She is also expected to testify in accordance with her deposition and any statements she has given. Cheryl Kinsley (1262 - 13th Avenue, Yuma, AZ) is a nurse who was employed by CHR at the time of Kelly Mikkelsen's death who will testify as a fact witness with regard to her actions on the day of his death and the circumstances surrounding his death. She is also expected to testify in accordance with her deposition and any statements she has given. Ofel Diaz (2526 7th Avenue, Yuma, AZ) was an employee of CHR at the time of Kelly Mikkelsen's death who will testify as a fact witness with regard to her training, certifications and employment by Defendant as well as her knowledge of the
21 Filed 10/17/2005

5.
5 6

6.
7 8

7.
9 10

8.
11 12

9.
13 14 15 16 17

(2) 9. 10.

18 19 20 21 22 23 24 25 26 27 28

11.

12.

13.

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circumstances surrounding the death of Kelly Mikkelsen. She is also expected to testify in accordance with her deposition and any statements she has given. 14. Art Rodriguez, R.N. (1881 West 15th Lane, Yuma, AZ) was a nurse employed by CHR at the time of Kelly Mikkelsen's death who will testify as a fact witness with regard to his knowledge of the circumstances surrounding the death of Kelly Mikkelsen. He is also expected to testify in accordance with his deposition and any statements he has given. The following witness is unlikely to be called at trial: Joseph Rich, M.D. (9217 Parkwest Blvd., Knoxville, TN) was the corporate medical director of Defendant Correctional Health Resources (CHR) who may be called to testify as a fact witness with regard to the operation and management of CHR, its policies and procedures, its contract with Yuma County and its staffing, hiring and training of employees. He is also expected to testify in accordance with his deposition and any statements he has given. Each party understands that it is responsible for ensuring that the witnesses it wishes to

3 4 5 6 7 8 9 10

(3) 15.

call to testify are subpoenaed. Each party further understands that any witness a party wishes
11

to call shall be listed on that party's list of witnesses above and that party cannot rely on that
12

witness having been listed or subpoenaed by another party.
13

2.
14 15

Defendant's witnesses:

Plaintiffs Mikkelsen object to defendants' list of witnesses as being nothing more than a list of ever potential witness disclosed in this case and not a list of true trial witnesses.
16

(1)
17 18

Witnesses who shall be called at trial: 1. 2. Rubecca Mikkelsen Taylor R. Fox Miles Mikkelsen Jerret Mikkelsen Allison Mikkelsen Dennis Mikkelsen Gloria Mikkelsen Betty Barnicle Dean Barnicle Dee Costa S. Casillas Raul Garcia
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19

3.
20

4.
21

5.
22

6.
23

7.
24

8.
25

9.
26

10.
27

11.
28

12.

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13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

K. R. Smith Victor Alvarez, M.D. David Reyes J. T. Wenger Officer Gilberto Herrera Sgt. A. Whitney Deputy Santos Fred Stecker Joe Horvath Perry Craig Jones Kevin D. Horn, M.D. Norman A. Wade Hector Anaya Oswaldo Velasquez Joseph "Red" Nimo Ron Sawyer Carl Johnson Jeremy Nimo Sgt. Rangel Kelly C. Bragan, R.N. Ofel Diaz Sgt. Miguel Caudillo Cheryl Lynn Kinsley, L.P.N. Officer Ruben Amaya Senior Officer Pete Arviso Sgt. Josephine Ayon Officer Jorge Gonzalez Officer Oscar Tostado
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41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

Officer Nick Rice Fernando Pichardo Officer R. Sanchez Lt. Penny S. Anders Officer Casey Smith Dispatcher Jeff Blackwell Robert Oberosler Officer Gary Urquardt Mark Fornoff Kevin Honaker Gene Tutell Don Sieble Joe Rivera Dr. Cushner Capt. Leon Wilmot Deputy Larry Platz Commander Eben Bratcher Deputy Frank Ziegler Geoffrey S. Dewhurst, MSC Andy Felix Charlie Moore Hector Sanchez Martin Ybarra Matt Gonzales A. Rodriguez "Conde" - Yuma County Jail Javier Gonzalez Dr. Montoya
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69. 70.

Deputy J. Waddell Deputy Gary Burch

71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95.

Renae Bowen Mary Ann Phillips Sandi Garcia Nidia Alvarez Griselda Torres Capt. Robert Gonzales Kenneth Faiver Dr. Alan Babiker Stephen Linde, P.A. Henry Goodliffe, M.D. Kim McDonald, CMSW, CSAC Mitch McDonald William E. Miller Ken Damron Ronald Wood Cheryl Wood Curtis Bailey Det. Rick Majewski David McBride Thomas Beck Richard Dote John Koch John Rivera R. Newman Mr. Martin, Jr.
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96. 97. 98.

Mr. Wellard Officer Counts Heather Smith

99. 100. 101. 102. 103.

Rodney Richey Mr. Chappell Julie Baumgarn, LPC Gloria Brass, R.N. Diane Abernathy, R.N.

Each party understands that it is responsible for ensuring that the witnesses it wishes to call to testify are subpoenaed. Each party further understands that any witness a party wishes to call shall be listed on that party's list of witnesses above and that party cannot rely on that witness having been listed or subpoenaed by another party. F. 1. LIST OF EXHIBITS The following exhibits are admissible in evidence and may be marked in evidence by the Clerk: a. Plaintiff's Exhibits: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Rule 26 Report of Robert B. Greifinger, M.D. dated 11/5/02 Rule 26 Report of Robert B. Greifinger, M.D. dated 5/8/03 Rule 26 Report of Robert B. Greifinger, M.D. dated 6/9/03 Curriculum vitae of Robert B. Greifinger, M.D. Rule 26 Report of Steven Pike, M.D. Curriculum vitae of Steven Pike, M.D. Rule 26 Report of Myrna L. Andersen Reed, RN-C, CRRN, MN Curriculum vitae of Myrna L. Andersen Reed Rule 26 Report of Skip T. Heck, Ph.D. dated 3/24/03 Curriculum vitae of Skip T. Heck, Ph.D. Rule 26 Report of John E. Buehler, Ph.D. dated 4/18/03
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12. 13. 14. 15.

Curriculum vitae of John E. Buehler, Ph.D. Rule 26 Letter report by Roderic Gottula, M.D. dated 6/19/03 Autopsy report of Kelly Mikkelsen Art Rodriguez' "red flag" affixed to the top of Kelly Mikkelsen's medical chart

16.

Yuma County Detention Center Intake Sheet dated 10/11/01 re Kelly Mikkelsen

17. 18. 19. 20.

Risk assessment notice re Kelly Mikkelsen dated 10/11/01 CHR nurses notes re Kelly Mikkelsen Atypical form re Kelly Mikkelsen Authorization for medical care and transfer of records re Kelly Mikkelsen dated 6/20/01

21. 22 23. 24. 25.

Physician's Orders re Kelly Mikkelsen Medical Request Form re Kelly Mikkelsen dated 7/21/01. Medical request form re Kelly Mikkelsen dated 9/6/01 Yuma Regional Medical Center medical records re Kelly Mikkelsen Cell phone record for Rubecca Mikkelsen's calls to Yuma County Detention Center and Yuma Regional Medical Center on 10/11/01

26.

Yuma County Sheriff Department narrative report re contact with Rubecca Mikkelsen on 10/11/01

27. 28. 29. 30.

Witness statement of Kelly Bragan, R.N. Yuma County Request for Proposal dated 5/17/01 CHR Medical Services Proposal dated 6/13/01 CHR Contract with Yuma County Sheriff's Office for health services effective 8/1/01

31. 32. 33.

CHR revised schedules dated 7/23/01 CHR contract with Dr. Babiker dated 8/10/01 CHR contract with P. A. Steve Linde dated 8/2/01
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34. 35. 36. 37. 38. 39. 40. 41. 42. 43.

CHR employment agreement with Ofel Diaz dated 9/20/01 CHR medical policy re intoxication and withdrawal CHR medical policy re suicide prevention Correspondence dated 7/23/01 from Faiver to YCDC Correspondence dated 1/8/02 from YCSO Office (Capt. Mitchell) to Faiver Correspondence dated 1/16/02 from Faiver to YCSO (Capt. Mitchell) Correspondence dated 1/22/02 from YCSO (Capt. Mitchell) to Faiver Correspondence dated 2/27/03 from YCSO (Capt. Mitchell) to Faiver ARS § 32-1645 - Nursing Assistant; Certification; Qualifications Arizona Administrative Code, Article 4, Regulation R4-19-813 Performance of Nursing Assistant Tasks

44.

Arizona Administrative Code, Article 4, Regulation R4-19-401 - Scope of Practice for a Practical Nurse and Regulation R4-19-402 - Scope of Practice for a Professional Nurse

45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

P.A. Steve Linde Time Sheets/Logs dated 8/20/01 - 12/22/01 Newspaper article `The Wichita Eagle' dated 1/11/92 re Dr. Rich Newspaper article `The Wichita Eagle' dated 1/22/92 re Dr. Rich Newspaper article `Lexington Herald-Leader' dated 3/5/92 re Dr. Rich Newspaper article `Lexington Herald-Leader' dated 4/19/92 re Dr. Rich Newspaper article `The Kentucky Post' dated 5/22/92 re Dr. Rich Newspaper article `The Kansas City Star' dated 8/22/92 re Dr. Rich Newspaper article `Lexington Herald-Leader' dated 8/22/92 re Dr. Rich Newspaper article `The Daily Oklahoman' dated 7/6/94 re Dr. Rich Newspaper article `The Wichita Eagle' dated 7/7/94 re Dr. Rich Newspaper article `Lexington Herald-Leader' dated 3/5/92 re Dr. Rich Newspaper article `The Kentucky Post' dated 5/28/94 re Dr. Rich Newspaper article `The Daily Oklahoman' dated 6/22/94 re Dr. Rich

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58.

The Federation of State Medical Boards Summary of Reported Information re Dr. Rich (as of 7/6/01)

59.

Settlement Agreement and Stipulation re Dr. Rich with Kansas State Board of Healing Arts dated 9/9/88

60.

Petition for Revocation, Suspension or Other Disciplinary Action against Licensee re Dr. Rich from Kansas State Board of Healing Arts dated 8/15/88

61.

Proposed Findings of Fact, Conclusions of Law and Recommended Decision re Dr. Rich from Kentucky State Board of Medical Licensure dated 5/19/93

62.

Kentucky Board of Medical Licensure Letter of Reprimand and Order to Dr. Rich dated 7/16/93

63.

Kentucky State Board of Medical Licensure Order Denying Application for Reregistration of Dr. Rich dated 8/28/97

64.

State of Tennessee Department of Health Proposed Findings of Fact, Conclusions of Law and Order re Dr. Rich dated 6/7/99

65.

State of Tennessee Department of Health Agreed Order/Findings of Fact re Dr. Rich dated 5/21/02

66.

State of Tennessee Department of Health Amended Agreed Order re Dr. Rich dated 9/17/02

67. 68.

Photographs of (a) family portraits and (b) Mikkelsen grave marker Photographs of (a) Kelly and Dad 6/3/95 and (b) Kelly, Rubecca & Dad at wedding

69.

Photographs of (a) Kelly with father, sister, brother and son, 1997 and (b) Kelly, Rubecca and Kelly's grandparents - 1997

70.

Photographs of (a) Kelly's last family photo - 2001 and (b) Mikkelsen family photo - 1984

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71.

Photographs of (a) Kelly with Myles, 1998; (b) Dennis Mikkelsen with Kelly's children, 4/03 and (c) Kelly, Mom, Dad, brother and sister - 1975

72.

Photographs of (a) All Mikkelsen children and grandchildren, May 2000; and (b) Kelly home for brother's graduation, May 2000

73. 74. 75. 76. 77. 78. 79.

Photographs of (a) Kelly and child and (b) Kelly and child Photographs of (a) Kelly and child and (b) Kelly and child Photographs of (a) Kelly and child and (b) Kelly and child Photograph of Kelly and child Photograph of Kelly and child Reports of Dr. Linda Sampliner dated 5/27/04 and 6/9/04. San Diego County Superior Court Order dated 3/22/96 setting child support for Taylor Fox at $566 per month.

80. 81.

Calculation of Child Support arrearages as of date of Mikkelsen's death. a. b. Photo of Kelly and Taylor on carousel Photo of Kelly and Taylor at fair Photo of Kelly, Tracy and Taylor at 1st birthday Photo of Kelly and family with big trees Photo of Kelly and Taylor on fair ride Photo of Kelly and Taylor in front of home Photo of Kelly holding Taylor on his chest Photo of Kelly and Taylor at 1st birthday Photo of Kelly and Taylor on fair ride Photo of Kelly and Taylor at geiser Photo collage of Kelly and Taylor with horse etc. Photo of Kelly at birth of Taylor Photo of Kelly teaching Taylor to walk Photo collage of Kelly with Taylor in early infancy Photo booth picture of Kelly and Taylor
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82.

a. b.

83.

a. b.

84.

a. b.

85.

a. b.

86.

a. b.

87.

a. b.

88.

a.

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b. 89. a. b. 90. a. b. 91. a. b. 92. a. b.

Photo booth picture of Kelly and Taylor Photo booth picture of Kelly and Taylor Professional portrait of Kelly and Taylor Photo collage of Christmas Photo of Kelly and Taylor with elderly woman Photo of Kelly and Taylor with elderly woman Photo collage of Kelly and Taylor on ride, sucking finger Photo of Taylor with elderly woman Professional photo of Taylor

b.

Defendants' Exhibits: 112. Records from the Maricopa County Medical Examiner's Office, including Autopsy Report, Photographs, Videotape, and Report of Toxicological Examination. 120. 126. Kelly Mikkelsen Income Tax Returns, 1997 through 2000. Sections 811, 860, 861 of the Yuma County Detention Center Policy and Procedures Manual (Bates Nos. 001942-1951) (Not Complete). 134. 152. 157. Report of Dr. Silberman . Lake Region Human Service Center psychological counseling records. Counseling records regarding Miles Mikkelsen from Geoffrey Dewhurst, MsC/Arizona Baptist Children's Services

2.

As to the following exhibits, the parties have reached the following stipulations: a. Plaintiffs' Exhibits: None. b. Defendant's Exhibits: None. 3. As to the following exhibits, the party against whom the exhibit is

to be offered objects to the admission of the exhibit and offers the objections
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stated below:

a.

Plaintiffs' Exhibits:

b.

Defendant's Exhibits:

Plaintiffs' objections to Defendants' exhibits listed below are as follows: First, Plaintiffs object to Defendants' exhibits for the reason that Defendants failed to have marked trial exhibits available at the October 3, 2005 meeting at which draft Final Joint Proposed Pretrial Orders were exchanged, as required by the Court's Order dated September 9, 2005. Second, Defendants' exhibits are, for the most part, are not true trial exhibits, but voluminous compilations of records. For example, Defendants Exhibit 100 is the "Yuma County Sheriff's Department Investigation Report, Case No. 2001-18670, including all supplements, witness statements, interviews, video tapes, photographs, and all other items of evidence contained and/or referred to therein," which is a compilation of 272 pages of documents. Clearly, Plaintiffs should not be required to review the 272 pages in Defendants Exhibit No. 100 and set forth on a line by line basis each and every one of their objections to such a voluminous exhibit. For these reasons, where Defendants have listed a trial exhibit which is a compilation of voluminous records, Plaintiffs have listed their evidentiary objections to such voluminous exhibits generally and comprehensively.

Defendants Exhibit No.: 100. Yuma County Sheriff's Department Investigation Report (Bates Nos. 000001- 272),
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Case No. 2001-18670, including all supplements, witness statements, interviews, videotapes, photographs, and all other items of evidence contained and/or referred to therein, including, but not limited to: (In