Free Motion to Enforce - District Court of Arizona - Arizona

LAW OFFICES
BEALE,
Micnmsr A. BEALE * HE AELS
]onN A. Micnemais * gc SLACK
K. THoMAs SLACK * P ,Q_
Kate Kilbane Thompson, R. N., Nurse Consultant NORMAN D. HALL
Pamela ]. Kieffer, C. L. A. S., Certyied Paralegal/Ojice Ad niinistrator OF COUNSEL
Michelle A. Worhacz, Paralegal TRACY
Writer 's Direct Line:
(602) 650-2465
[am@,l>eale—nzicheaels. com
Via Facsimile and E-Mail
October 14, 2005
James W. Bamhouse, Esq.
RENAUD, COOK & DRURY, P.A.
40 North Central Avenue, #1600
Phoenix, Arizona 85004
Re: Mikkelsen v. CHR, Faiver, Rich
Dear Jim:
This is merely to follow up on my telephone conversation with you shortly after
5:00 p.m. today, October 14, 2005, concerning the Final Joint Proposed Pretrial Order,
Stipulated Description of the Case to be Read to the Jury, Joint Master List of the Names
of Every Witness Who May Be Called at Trial, Joint Proposed Set of Voir Dire Questions
and Joint Proposed Jury Instructions (conforming to Attachment No. 1 to the Order
Setting Final Pretrial Conference). .
As I indicated to you, at approximately 3:45 p.m. today I received Defendants’
Deposition Designations for thirteen (13) additional depositions. Defendants’ deposition
designations should have been provided to me on October 3, 2005. Frankly, I do not
know when I am going to be able to review all of these depositions for admissibility
objections and/or for requesting that additional portions be read to the jury.
1440 E. MISSOURI AVENUE, SUITE 150, PHOENIX, ARIZONA 85014
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*State Bar Certified Specialist - Personal Injury and Wrongful Death

LAW OFFICES
BEALE,
MICHEAELS
& SLA<:1<
p.C.
October 14, 2005
Page 2
Shortly after 4:00 p.m. today, I received a document entitled, "CHR Defendants’
Objections to Plaintiffs’ Proposed Jury Instructions; CHR Defendants’ Memorandum in
Support of the Jury Instructions; and CHR Defendants’ Proposed Jury Instructions." As I
explained to you, this document is deficit in a number of respects.
First, this document does not conform to Attachment No. l to the Order Setting
Final Pretrial Conference. Attachment No. l states that the parties shall submit a joint list
of proposed jury instructions, containing four sections. Section I shall contain model
instructions. Defendants have not provided their model instructions in the required
format.
Section II is to contain any non-model instructions to which the parties have
stipulated. To date, it does not appear that the parties have reached any such stipulations.
Section III shall contain any non-model instructions requested by Plaintiffs
(numbered consecutively). We complied with the required format. The Defendants were
supposed to state all objections to each of Plaintiffs’ non-model instructions immediately
following the instruction and Plaintiffs’ authority. The Defendants were supposed to
support any objection with citation to authority and, if Defendants offered an alternative
instruction, such alternative instruction was to immediately follow Defendants’
objection. Defendants have not complied with the format required by the Cou1t’s
Attachment No. 1. Please do so.
Section IV of the Joint Proposed Jury Instructions is supposed to contain any non-
model instructions requested by Defendants (numbered consecutively). Defendants have
not provided any non-model instructions in the proper format.
In CHR’s draft Memorandum in Support of Jury Instructions, Defendants have
agreed to stipulate that Defendant CHR is vicariously liable for the conduct of Nurse
Bragan, Nurse Kinsley, Ofel Diaz, Dr. Rich and Mr. Faiver on Plaintiffs’ state law claims.
Defendants have also agreed to stipulate that Defendants CHR, Dr. Rich and Mr. Faiver
were acting under color of law on Plaintiffs’ federal civil rights Eighth Amendment
medical care claim. I will revise the Joint Proposed Set of Jury Instructions accordingly.
Case 2:02-cv-02252-JAT Document 242-3 Filed 10/17/2005 Page 2 of 4

LAW OFFICES
BEALE,
MICHEAELS
& SLACK
P.C.
October 14, 2005
Page 3
As I also pointed out to you, Defendants have attempted to request jury
instructions (including Defendants’ Model Instruction 1.2 Claims and Defenses, 5.3
Complete Affirmative Defense, instruction non-model "suicide" instruction, A.R.S. § 12-
711 instruction, A.R.S. § 12-712 instruction and "good faith" defense to Plaintiffs’ civil
rights claim instruction) which incorporate affirmative defenses that have never been
raised and/or properly preserved by Defendants. Please let me know if Defendants
seriously intend to raise these affirmative defenses at this late stage. To my knowledge,
Defendants have never asserted any affirmative defense which is a "complete defense" to
Plaintiffs’ claims. In this regard, please see Defendants’ Answers to Plaintiffs’ Second
Amended Complaint.
I am attaching the latest revised Joint Proposed Set of Jury Instructions. As you
can see, I have revised the model instruction 1.2 Claims and Defenses instruction, the
model instructions Section 6.2, 6.4, 6.5, 6.6, 6.7 and 6.8 regarding agency issues (in light
of Defendants’ stipulation), model instruction section 11.2 defining under color of law (in
light of Defendants’ stipulation) and model instruction section 11.11 regarding violation
of prisoner’s federal civil rights — Eighth Amendment- medical care (to include the
parties’ stipulation that Defendants CHR, F aiver and Rich acted under color of law).
Please provide me with Defendants’ input to the enclosed latest revision to the
Joint Proposed Set of Jury Instructions (conforming to Attachment No. 1 to the Order
Setting Final Pretrial Conference) before 9:00 a.m., on Monday, October 17, so this
document can be finalized, signed and filed with the Court. .
Lastly (with the exception of the recently received 13 deposition transcript
designations) at the time of dictating this letter (7:30 p.m. on Friday, October 14), I have
not received any input from Defendants to the latest drafts of Final Joint Proposed
Pretrial Order, Stipulated Designation of the Case to be Read to the Jury, Joint Master
List of the Names of Any Witnesses Who May be Called at Trial or Joint Proposed Set of
Voir Dire Questions. Accordingly, I intend to file these pleadings on Monday, October
17 (as required) and advise the Court of Defendants’ failure to provide the input
necessary to complete these joint pleadings for filing on October 17. Defendants have
left me no other course. Thanks.
Case 2:02-cv-02252-JAT Document 242-3 Filed 10/17/2005 Page 3 of 4

LAW OFFICES
BEALE,
MICHEAELS
& SLAc1<
P.C.
October 14, 2005
Page 4
Yours very truly,
Q2
Micheaels
‘ `·' b
Enclosures
c: A. James Clark, Esq. W/enc.
Michael Aboud, Esq. W/enc.
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