Free Motion to Enforce - 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 FOR ENFORCEMENT OF COURT'S ORDER SETTING FINAL PRETRIAL CONFERENCE AND SANCTIONS

(Assigned to the Honorable James A. Teilborg)

Plaintiffs Mikkelsen, by and through undersigned counsel, file this motion requesting
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enforcement of the Court's September 9, 2005 Order Setting Final Pretrial Conference and for
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sanctions against defendants for the reason that defendants failure to comply with the Order
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Setting Final Pretrial Conference has prevented the parties from being able to have prepared, signed and filed by the deadline of 4:00 p.m. today, October 17, 2005, the following documents: (1) Joint Proposed Final Pretrial Order (in the form required by the Court's Order Setting Final Pretrial Conference); (2) (3) (4) (5) Stipulated Description of the Case To Be Read To The Jury; Joint master list of witnesses who may be called at trial; Joint set of proposed voir dire questions; and Joint set of proposed jury instructions (in accordance with Attachment No. 1 to the Court's Order Setting Final Pretrial Conference). This motion is supported by the following Memorandum of Points and Authorities, along with the exhibits attached hereto. Memorandum of Points and Authorities The Court's September 9, 2005 Order Setting Final Pretrial Conference was clear and unambiguous. The Order required that the parties by today 4:00 p.m., October 17, 2005, have prepared, signed and filed the following documents: 1. Joint Proposed Final Pretrial Order (following the format set forth in the Court's Order and the attachments to the Order). 2. 3. 4. A stipulated Description Of The Case To Be Read To The Jury. Joint Set of Proposed Voir Dire Questions. A Joint Set of Proposed Jury Instructions (following the format set forth in Attachment No. 1 to the Court's Order Setting Final Pretrial Conference). 5. A joint master list of witnesses who may be called at trial for the Court's use in connection with voir dire. In order to accomplish all the foregoing by October 17, the Court's September 9, 2005 Order Setting Final Pretrial Conference, required that counsel for the parties meet at least 14 days prior to October 17 (i.e., on or prior to October 3) and at that meeting accomplish the following: 1. Exchange properly prepared initial drafts of Joint Proposed Final Pretrial Orders,
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which were to include each party's list of trial exhibits (corresponding to marked trial exhibits to be exchanged at the October 3 meeting), proper list of trial witnesses (identifying trial witnesses who shall be called, may be called and were unlikely to be called to testify at trial), and designating by page and line, deposition testimony to be read to the jury. 2. Exchange each party's properly marked trial exhibits (with numbers corresponding to the trial exhibits listed on the party's draft Joint Proposed Final Pretrial Order). 3. Exchange a draft proposed description of the case to be read to the jury.

The obvious purpose of the foregoing requirements was so that at that meeting counsel for the parties could accomplish, at a minimum, the following: (1) (2) Comparing marked trial exhibits and eliminating any duplicative trial exhibits, Discussing which witnesses were indeed likely to be called at trial (in order that each party could begin trial preparation and have some reasonable idea about rescheduling of trial witnesses, particularly expert witnesses), (3) Let each party know which deposition testimony was being designated, so that the other parties could read that designated deposition testimony, identify any admissibility objections and specify any additional portions of each such deposition to be read to the jury pursuant to Federal Rule of Civil Procedure 32(a) (4) (well in advance of the October 17 deadline for filing the Joint Proposed Final Pretrial Order), and (4) Have the other parties' draft proposed description of the case to be read to the jury in order to reach some agreement on the description of the case to be read to the jury well in advance of the October 17 deadline for filing the stipulated description of case to be read to the jury. As set forth in Plaintiffs Mikkelsen's Response to Defendants' Motion for Relief from Order Setting Final Pretrial Conference, the October 3rd meeting was initiated by undersigned

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counsel on behalf of Plaintiffs Mikkelsen.1 At the October 3rd meeting, Plaintiffs Mikkelsen provided defense counsel and counsel for co-Plaintiff Fox with the following documents: 1. Plaintiffs' draft of the Joint Proposed Final Pretrial Order, including proper witness list, exhibit list and deposition designations. 2. 3. 4. Plaintiffs' draft jury instructions. Plaintiffs' draft proposed description of case to be read to the jury. Plaintiffs' marked trial exhibits (corresponding to the exhibit list on plaintiffs' draft Joint Proposed Pretrial Order).2 Although defendants provided Plaintiffs Mikkelsen with a draft Joint Proposed Final Pretrial Order at the October 3 meeting, that draft was deficient in multiple respects.3 First, defendants made no mention in their draft of any issue regarding plaintiffs being the proper party and/or having standing to bring the §1983 claim and/or any mention of lack of jurisdiction. Indeed, no mention was made at the October 3 meeting by defense counsel of these issues. Rather, two days later, on October 5, 2005, defendants chose to raise for the first time, plaintiffs alleged lack of capacity/standing to bring a §1983 claim and the Court's alleged lack of jurisdiction in defendants' motion suggesting lack of jurisdiction and motion to remand. Second, defendants' draft Joint Proposed Final Pretrial Order was obviously deficient in its statement of purported undisputed facts, which was nothing more than pure argument. Third, defendants' draft Joint Proposed Final Pretrial Order was obviously deficient in its statement of factual issues to be tried to the jury, having completely omitted plaintiffs' three
On September 28, 2005, A. James Clark, counsel for Plaintiffs Rubecca Mikkelsen, Miles Mikkelsen, Jerret Mikkelsen and Allison Mikkelsen underwent urgent major surgery to repair an aerotic annysurm at Stanford Medical Center. As a result, prior to that surgery, Mr. Clark authorized undersigned counsel to act on his behalf and on behalf of his clients in connection with the October 3 meeting and the preparation of Plaintiffs Mikkelsens' draft JointProposed Final Pretrial Order, draft proposed description of case to be read to the jury, draft joint proposed set of jury instructions, and draft joint set of proposed voir dire questions. Plaintiffs Mikkelsens' draft Joint Proposed Final Pretrial Order was attached as Exhibit A to Plaintiffs Mikkelsens' Response to Defendants' Motion for Relief from Order Setting Final Pretrial Conference. Plaintiffs attached Defendants' draft Joint Proposed Final Pretrial Order as Exhibit B to their Response to Defendants' Motion for Relief from Order Setting Final Pretrial Conference. 4 Filed 10/17/2005
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claims against defendants -- medical negligence claim, negligence claim and plaintiffs' §1983 claim. Fourth, defendants draft did not identify any true trial witnesses. Rather, defendants listed as trial witnesses all 105 persons who had been disclosed as potential witnesses during this litigation. Fifth, defendants draft Joint Proposed Final Pretrial Order listed 382 purported trial exhibits, which was nothing more than a compilation of every single document (or set of documents) which have been disclosed and/or produced in the considerable discovery in this case over the course of the last three years. Some of the exhibits on defendants list of purported trial exhibits contain more than 200 pages. Defendants also did not provide properly marked copies of any of these purported trial exhibits. Quite plainly, defendants did not do anything to properly prepare their trial exhibits for the October 3 meeting. Last, defendants draft Proposed Final Pretrial Order did not include any specific (page and line) deposition designations. Rather, defendants merely listed all 33 depositions taken in this case. At the October 3 meeting, undersigned counsel pointed out to defense counsel all of the deficiencies in defendants' draft Final Joint Proposed Pretrial Order, including the deficiencies in identification of trial witnesses, the failure to provide properly marked trial exhibits, and the failure to designate any specific deposition testimony by page and line. In response, at the October 3 meeting, defense counsel merely stated that defendants reserved the right to call as trial witnesses every person who had been deposed/disclosed in this case -- more than 100 potential trial witnesses, without having to identify those which would be called, might be called, and were unlikely to be called. Undersigned counsel pointed out that unless defendants properly identified their trial witnesses, there was no way that counsel for Plaintiffs Mikkelsen could properly prepare this case for trial. Undersigned counsel also pointed out that unless defendants provided properly marked trial exhibits, there was no way undersigned counsel could review defendants' listed 382 trial exhibits (which was literally every single document (or set of documents) disclosed/discovered in the last three years in this protracted litigation).
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Undersigned counsel also pointed out at the October 3 meeting that without having proper deposition designations, there was no way Plaintiffs Mikkelsen could review the deposition testimony that defendants truly intended to read to the jury for admissibility objections and/or for requesting that additional portions be read to the jury, and incorporate same into a joint proposed final pretrial order to be filed on October 17th. In short, undersigned counsel made it clear to defense counsel at the October 3rd meeting that defendants had not complied with the Court's Order Setting Final Pretrial Conference and that unless the defendants provided the required documents -- properly marked trial exhibits (with numbers corresponding to defendants' draft Proposed Final Pretrial Order), a meaningful list of trial witnesses, specific deposition testimony designations (by page and line), joint proposed description of case to be read to the jury, and defendants' proposed jury instructions (conforming to Attachment No. 1 to the Order Setting Final Pretrial Conference -- immediately undersigned counsel was very concerned that the parties would not be able to meet the October 17, 2005 deadline for filing these joint documents with the Court. Suffice it to say, undersigned counsel's concern on October 3 has come to pass. Between October 3 and October 14, 2005, defendants did not provide plaintiffs with the following: (1) Any revisions to defendants' October 3 draft of Joint Proposed Final Pretrial Order, (2) Any proper list of trial witnesses (identifying those witnesses of the 105 persons listed who shall be called, those who may be called, and those who are unlikely to be called by defendants), (3) (4) A proposed description of the case to be read to the jury, Defendants' set of proposed jury instructions (conforming to Attachment No. 1 to the Order Setting Final Pretrial Conference), (6) Defendants' set of proposed voir dire questions.

Instead, what defendants provided counsel for Plaintiffs Mikkelsen between October 3 and October 14, was the following:
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1.

On October 6, defendants provided undersigned counsel with some marked trial exhibits. However, marked copies of many of defendants' 382 listed exhibits were not provided. Since October 6, defendants have advised us that they are removing certain exhibits from their initial list of 382 trial exhibits. Defendants still have not provided marked copies of all their listed exhibits.

2.

On October 11, 2005, defendants filed a Motion for Relief From the Portion of the Court's Order Setting Final Pretrial Conference as it Relates to Initial Exchanging of Marked Trial Exhibits, to which Plaintiffs Mikkelsen have responded. In our Response, we pointed out defendants' ongoing failure to comply with the Court's Order Setting Final Pretrial Conference. We also pointed out our concern that defendants would, at the eleventh hour -- one or two working days prior to October 17 when the parties Final Proposed Joint Pretrial Order was due -- attempt to designate numerous pages and lines from the 33 depositions taken in this case, leaving undersigned counsel with the impossible task of reviewing voluminous deposition designations to make appropriate admissibility objections and/or to list additional portions to be read to the jury. Again, undersigned counsel's stated concerns came to pass.

3.

On Thursday, October 13, 2005 defendants provided (by e-mail) defendants' first specific deposition designations to be read to the jury from five depositions taken in this case. Of note is the fact that defendants designated virtually all of the testimony in these five depositions.

Prior to Friday, October 14, 2005, Plaintiffs Mikkelsen had not received any other input from defendants regarding the Joint Proposed Final Pretrial Order. Further, prior to October 14, defendants had not provided undersigned counsel with any input regarding the stipulated description of the case to be read to the jury or regarding the joint set of proposed jury instructions. Accordingly, on October 14, undersigned counsel sent by e-mail and facsimile a letter to defense counsel pointing out defendants' failures to comply with the Court's Order Setting Final Pretrial Conference, and enclosing the following:
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1.

Joint Set of Proposed Jury Instructions (conforming to Attachment No. 1 to the Order Setting Final Pretrial Conference);

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Stipulated Description of the case to be read to the jury; Joint master list of the name of every witness who may be called at trial (identifying Plaintiffs Mikkelsen's witnesses who may be called at trial);

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Joint Set of Proposed Voir Dire Questions; Plaintiffs Mikkelsen's requested forms of verdict; and Joint Proposed Final Pretrial Order (latest revised draft).

A copy of undersigned counsel's October 14, 2005 letter to defense counsel is attached hereto as Exhibit A. As the Court can see, the revision to the Joint Final Proposed Pretrial Order e-mailed and faxed to defense counsel on October 14 did not include defendants' October 13 deposition designations because undersigned counsel had not yet had time to review those deposition designations. That revision to the Joint Proposed Final Pretrial Order also did not include defendants' list of all 105 trial witnesses, because undersigned counsel did not believe the listing of all 105 persons disclosed/deposed in this case constituted a good faith and fair dealing trial witness list. As can be seen from Exhibit A, undersigned counsel requested that defense counsel provide any additional input to the enclosed Joint Proposed Final Pretrial Order, Stipulated Description of the case to be read to the jury, Joint Master List of the name of every witness who may be called at trial, Joint set of proposed jury instructions, and joint set of proposed voir dire questions by 4:00 p.m., October 14, in order that any such changes/additions could be incorporated and those documents finalized, signed by counsel and filed by 5:00 p.m. on October 17. Exhibit A and its attachments were e-mailed and faxed to defense counsel at approximately 12:00 noon on October 14. At about 3:45 p.m. on October 14, defendants e-mailed to undersigned counsel voluminous deposition designations from 13 additional depositions taken in this case. At 4:01 p.m. on October 14, defendants e-mailed to undersigned counsel a document entitled "CHR Defendants Objections to Plaintiffs' Proposed Jury Instructions; CHR Defendants Memorandum
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in Support of Their Jury Instructions; and CHR Defendants Proposed Jury Instructions," which document was in a draft form. After reviewing that draft document, undersigned counsel called defense counsel, Jim Barnhouse at approximately 5:00 p.m., on Friday, October 14 to discuss with Mr. Barnhouse defendants' complete failure to comply with the Court's September 9 Order Setting Final Pretrial Conference in regard to completion of the Joint Proposed Final 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 set of proposed jury instructions, (conforming to Attachment No. 1 to the Order Setting Final Pretrial Conference) and joint set of proposed voir dire questions. Following that conversation, undersigned counsel sent to Mr. Barnhouse - by facsimile and email at approximately 8:30 p.m. on Friday, October 14 - a letter reiterating defendants' failure to comply with the Order Setting Final Pretrial Conference. A copy of that letter is attached hereto as Exhibit B. As undersigned counsel indicated in his telephone conversation with Mr. Barnhouse (shortly after 5:00 p.m. on October 14) and indicated in his Exhibit B, Plaintiffs Mikkelsen had been left with no other course but to file this Motion for Enforcement of the Order Setting Final Pretrial Conference and Sanctions on October 17. In this regard, Plaintiffs Mikkelsen have attached the following documents required to be filed by the Court's Order today, October 17 in their latest revised state: 1. 2. 3. Draft Joint Proposed Final Pretrial Order (Exhibit C) Draft Stipulated Description of Case To Be Read to The Jury. (Exhibit D) Plaintiffs' draft of Joint Set of Proposed Jury Instructions (conforming to Attachment No. 1 of the Court's Order Setting Final Pretrial Conference). (Exhibit E) 4. 5. Draft Proposed Joint Set of Voir Dire questions. (Exhibit F) Draft Joint Master List of Witnesses Who May Be Called at Trial. (Exhibit G)

As the Court can see, in the latest revised draft of the Joint Proposed Final Pretrial Order, undersigned counsel has included defendants' list of 103 trial witnesses, defendants' list of trial exhibits (for some of which plaintiffs still do not have properly marked exhibits provided by
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defendants), and defendants' voluminous untimely deposition designations from 18 depositions. (Undersigned counsel has not yet had the opportunity to review these voluminous deposition designations in order to make admissibility objections and to designate additional portions to be read to the jury pursuant to Federal Rules of Civil Procedure 32(a)(4). In light of defendants' failures to comply with the Order Setting Final Pretrial Conference, Plaintiffs Mikkelsen request the following sanctions: 1. The Court accept the attached Joint Proposed Final Pretrial Order (Exhibit C), (a) the case proceed to trial on the issues of fact and law set forth in Section D of Exhibit C, (b) (c) (d) (e) defendants be precluded from calling any witnesses to testify at trial, defendants be precluded from offering any trial exhibits, defendants be precluded from offering any deposition testimony, and defendants be precluded from making any admissibility objections to plaintiffs' exhibits. 2. The Court accept plaintiffs' attached joint set of proposed voir dire questions (Exhibit F) and preclude defendants from offering any untimely voir dire questions. 3. The Court accept plaintiffs' attached joint set of proposed jury instructions (Exhibit E) and preclude defendants from offering any set of proposed jury instructions. 4. The Court accept and read to the jury the attached Description of the Case to be read to the jury (Exhibit D). Plaintiffs Mikkelsen respectfully submit that these requested sanctions are in accordance with this Court's September 9 Order Setting Final Pretrial Conference. Plaintiffs Mikkelsen further submit that these sanctions are warranted given defendants repeated failures to comply with that Order.

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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 CLARK & MOORE

By

/s/ John A. Micheaels (with authorization) A. James Clark 256 South Second Avenue, #E Yuma, Arizona 85364 Attorneys for Plaintiffs Miles, Jerret and Allison Mikkelsen

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

Clerk of the U.S. District Court 401 West Washington Street 17 Phoenix, Arizona 85003 Honorable James A. Teilborg U. S. District Court 19 401 West Washington Street 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 28 100 North Stone Avenue, #303
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Tucson, Arizona 85701 Co-Counsel for Plaintiff Fox

Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 150 W. Second Street 4 Yuma, Arizona 85364 Co-Counsel for Plaintiff Fox
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By
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/s/ Sue Ketz

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