Free Response in Opposition to Motion - 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 RESPONSE TO DEFENDANTS' MOTION FOR RELIEF FROM PORTION OF PRETRIAL SCHEDULING ORDER RELATING TO EXCHANGE OF MARKED EXHIBITS

(Assigned to the Honorable James A. Teilborg)

Plaintiffs Mikkelsen, by and through undersigned counsel, respond to Defendants' Motion
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for Relief From Portion of Pretrial Scheduling Order as Relates to Initial Exchange of Exhibits
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as follows.
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The Court's September 9, 2005 Pretrial Scheduling Order was clear. The parties were to meet at least 14 days before the October 17, 2005 deadline for filing the Final Joint Proposed Pretrial Order and at that meeting the parties were to do the following: 1. 2. Exchange drafts of Final Joint Proposed Pretrial Order. Exchange properly marked trial exhibits (with numbers which correspond to the trial exhibit list set forth in the party's draft Joint Proposed Pretrial Order). 3. Each party's draft Final Joint Proposed Pretrial Order was to include a list of all trial witnesses, setting forth the witnesses the parties shall call to testify at trial, the witnesses the party may call at trial, and the witnesses the party was unlikely to call at trial, as well as deposition testimony designations. The Court's Pretrial Scheduling Order also made perfectly clear the consequences of a party's failure to comply with the Order. The Defendants simply failed to comply with the Court's Pretrial Scheduling Order. The Defendants failure to comply with the Court's Pretrial Scheduling Order was in no way the fault of Plaintiffs Mikkelsen. First, it was counsel for Plaintiffs Mikkelsen who initiated the October 3, 2005 meeting. (It is doubtful that the October 3, 2005 meeting ever would have taken place had undersigned counsel not arranged to do so.)1 Second, at the October 3, 2005 meeting, Plaintiffs Mikkelsen provided all parties with the following: 1. Plaintiffs draft of the Joint Proposed Pretrial Order including proper witness list, exhibit list and deposition designations.. 2. 3. Plaintiffs draft Jury Instructions. Plaintiffs draft Description of Case to be Read to Jury.

Defense counsel notes that counsel for Plaintiffs Miles, Jarett and Allison Mikkelsen, A. James Clark, was not present at the October 3, 2005 meeting. The reason is simple: Mr. Clark underwent major surgery to repair an aortic artery aneurysm at Stanford Medical Center on September 28, 2005 and is still hospitalized at Stanford Medical Center. Prior to his surgery, Mr. Clark authorized undersigned counsel to act on his clients' behalf in connection with the preparation of the Final Joint Proposed Pretrial Order including the October 3 meeting. Mr. Clark intends to be present at the November 7, 2005 final pretrial conference and intends to fully participate in the trial of this case commencing on November 29, 2005.

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Plaintiffs marked exhibits (corresponding to the exhibits lists on Plaintiffs draft Final Joint Proposed Pretrial Order).2

Although Defendants provided Plaintiffs Mikkelsen with a draft Final Joint Proposed Pretrial Order at the October 3 meeting, that draft was deficient in multiple respects.3 First, that draft listed 382 purported trial exhibits, which was nothing more than a compilation of every single document (or set of documents) which had been disclosed and/or produced in the considerable discovery in this case over the course of the last three plus years. Some of the exhibits on Defendants' list of purported trial exhibits contained more than 200 pages. Defendants did not provide 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. Defendants' draft Final Proposed Pretrial Order also did not identify any true trial witnesses, nor did it include any specific (page and line) deposition designations. Rather, Defendants listed as trial witnesses all 105 persons who had been disclosed as potential witnesses during this litigation and listed all 33 depositions taken in this case. At the October 3 meeting, defense counsel took the position that he was reserving the right to call as a trial witness all persons who had been deposed/disclosed in this case over the last three years -- more than 100 potential witnesses. Undersigned counsel pointed out that the Court's Pretrial Scheduling Order required that the parties specify the trial witnesses which shall be called by

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Attached as Exhibit A is Plaintiffs Mikkelsen's draft Final Proposed Pretrial Order.

So that there is no doubt as to the inadequacy of Defendants' draft Joint Proposed Pretrial Order, Plaintiffs Mikkelsen have attached hereto as Exhibit B a copy of that Defendants' draft Final Joint Proposed Pretrial Order provided at the October 3 meeting. As the Court can see, Defendants draft Final Proposed Pretrial Order is deficient in numerous respects. First, Defendants make no mention in their draft of any issue regarding Plaintiffs' standing to bring the §1983 claim and/or lack of jurisdiction. Indeed, no mention was made at the October 3 meeting by defense counsel of either of these two issues. Two days later, on October 5, 2005, Defendants chose to raise for the first time, Plaintiffs' alleged lack of standing to bring a §1983 claim and the Court's lack of jurisdiction in Defendants' motion suggesting lack of jurisdiction and motion to remand. Plaintiffs Mikkelsen will address this untimely and unfounded motion in a separate response. Second, Defendants' draft Final Joint Proposed Pretrial Order is obviously deficient in its statement of undisputed facts and statement of issues to be tried. Third, as the Court can see, in their draft, Defendants merely listed every single document that had been produced by way of discovery/disclosure in this lengthy litigation, without making any attempt to properly prepare and mark trial exhibits. Fourth, the draft does not contain the required list of trial witnesses and no specified deposition testimony designations.

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a party, which may be called by a party and which are unlikely to be called by a party in their draft Final Joint Proposed Pretrial Order. In response, 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 identifying those which would be called, might be called and were unlikely to be called. Obviously, Defendants had not taken the time to properly identify and prepare their list of trial witnesses prior to the October 3 meeting.4 The Court should also be aware that in Defendants' draft Final Joint Proposed Pretrial Order provided at the October 3 meeting, Defendants did not designate any specific deposition testimony. In their draft, Plaintiffs Mikkelsen did designate the specific deposition testimony they intended to offer at trial. To date, Defendants have not designated any specific deposition testimony to be read at trial. Plaintiffs Mikkeslen are concerned that Defendants will -- at the eleventh hour (one or two working days prior to October 17, 2005, when the parties' Final Proposed Joint Pretrial Order is due to be submitted to the Court) -- 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 in order to make any appropriate admissibility objections and/or to list additional portions to be read to the jury pursuant to Federal Rules of Civil Procedure 32(a)(4). Plaintiffs Mikkelsen respectfully submit that they should not bear the burden of Defendants failure to properly prepare for the October 3 meeting, including preparing a proper draft Final Joint Proposed Pretrial Order, with properly marked exhibits, properly listed trial witnesses and properly designated deposition testimony. Based upon the foregoing, Plaintiffs Mikkelsen, having complied with this Court's Pretrial Scheduling Order, respectfully submit that the Court's Pretrial Scheduling Order should be enforced and Defendants' Motion for Release From Portion of Pretrial Scheduling Order

Defendants have yet to provide Plaintiffs with a proper list of trial witnesses, identifying those witnesses which shall be called to testify at trial by defendants, those witnesses which may be called to testify at trial by Defendants, and those witnesses which are unlikely to be called by Defendants to testify at trial. 4 Case 2:02-cv-02252-JAT Document 240 Filed 10/12/2005 Page 4 of 6

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denied. RESPECTFULLY SUBMITTED this 12th 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 12th day of October, 2005, to: Clerk of the U.S. District Court 401 West Washington Street Phoenix, Arizona 85003 Honorable James A. Teilborg U. S. District Court 401 West Washington Street Phoenix, Arizona 85003 . James W. Barnhouse, Esq. RENAUD, COOK, DRURY & MESAROS, P.A. One North Central Avenue, #900 Phoenix, Arizona 85004 Attorneys for Defendants Correctional Health Resources, Inc., Faiver and Rich

Michael J. Aboud Esq. ABOUD & ABOUD 100 North Stone Avenue, #303 26 Tucson, Arizona 85701 Co-Counsel for Plaintiff Fox
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Mary K. Boyte, Esq. BOYTE & MINORE, P.C. 2 150 W. Second Street Yuma, Arizona 85364 3 Co-Counsel for Plaintiff Fox
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By /s/ Sue Ketz