Free Reply to Response to Motion - District Court of Arizona - Arizona

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Michael S. Rubin (#005131) David Bray (#014346) MARISCAL WEEKS MCINTYRE & FRIEDLANDER, PA 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012-2705 Robert R. Brunelli (#20070) Benjamin B. Lieb (#28724) SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202-5141 Attorneys for Robert E. Moroney, LLC, Robert Moroney, and A Major Difference, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Erchonia Medical, Inc., et al. Plaintiffs, v. Miki Smith, et al. Defendants. Erchonia Medical, Inc., et al. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CIV 02-2036-PHX-MHM

17 Plaintiffs, 18 v. 19 Miki Smith, et al. 20 Defendants. 21 22 23 24 25 26 27 v. Erchonia Medical, Inc., et al. Defendants. Robert E. Moroney, LLC, et al. Plaintiffs,

ROBERT E. MORONEY LLC'S RESPONSE IN OPPOSITION TO ERCHONIA MEDICAL, INC.'S SUPPLEMENTAL STATEMENT OF FACTS IN RESPONSE TO ROBERT E. MORONEY LLC'S CONSOLIDATED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING ERCHONIA MEDICAL, INC.'S TORTIOUS INTERFERENCE WITH CONTRACT CLAIM

Robert E. Moroney LLC's ("REM") hereby responds to Erchonia Medical, Inc.'s 28 ("Erchonia") Supplemental Statement of Facts in Response to REM's Consolidated Motion for Partial Summary Judgment regarding Erchonia's Tortious Interference with Contract Case 2:02-cv-02036-MHM Document 306 Filed 09/09/2005 Page 1 of 60

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Claim ("Erchonia S.S.O.F."), to point out the unsupported, mischaracterized and outright false statements contained therein, on a paragraph-by-paragraph basis: 1.­3. Not disputed. 4. references. 5.­7. Not disputed. 8. Erchonia's claim that Jeanne Winner attended the June 2002 Brimhall The factual allegations of paragraph 4 are not supported by the underlying

seminar "for the purpose of learning how to use lasers in a chiropractic practice" is false. Ms. Winner's undisputed testimony as to why she attended this seminar is as follows: Q: A: So first of all, why did you sign up for the Brimhall seminar? Because I wanted to learn more holistic techniques, and I liked Dr. Brimhall's approach, and I liked his body scan, and he's closely connected with Nutra West, so they're often recommending him, and I think he helped formulate a lot of their products, some of their products any way. And I wanted to learn more about the use of the products, and I wanted to learn more about other techniques that possibly could be used as far as nutrition and wellness in my wellness center. (Deposition of Jeanne Winner ("Winner Depo."), p. 19, l. 18 ­ p. 20, l. 4, attached hereto as Exhibit 1.) The record cited by Erchonia does not support its claim that Winner's purpose for attending the seminar was to learn how to use lasers in a chiropractic practice. 9. The record cited by Erchonia does not support its claim that "[p]rior to

attending [the Brimhall] seminar [Ms. Winner] made a decision to purchase a laser for use in the chiropractic clinic." In fact, Ms. Winner's testimony is that, upon learning about the benefits of therapeutic lasers, Ms. Winner merely said "we really need to get one of these. . . ." (Winner Depo., p. 20, ll. 12 ­ 24.) There is no evidence that Winner made a decision to purchase a laser before or during the Brimhall seminar. In fact, Winner's testimony is that her decision to purchase a laser was not made until after she attended the June 2002 Brimhall seminar when her husband broke his clavicle. (Id., p. 17, l. 11 ­ p. 18, l. 9.)

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10.

As set forth in paragraph 10, REM does not dispute that, at the June 2002

Brimhall seminar, Ms. Winner learned of REM's Quantum IV Laser from John Taft, a Nutra West representative. However, there is no evidence supporting Erchonia's assertion that Ms. Winner "held off" purchasing a laser at the seminar based upon learning about the Quantum IV Laser. Indeed, there is no evidence that Ms. Winner had the ability, intention or authority to actually purchase a laser at the seminar. 11. While REM does not dispute that John Taft's testimony is that he referred

Ms. Winner, Dr. Bonnie Phillips and others to Miki Smith to discuss the purchase of a laser, Erchonia implies that the referral to Miki Smith was for the purchase of REM's Quantum IV Laser. In fact, Taft's testimony was unequivocal that he was referring Ms. Winner, Dr. Phillips and others to Mr. Smith concerning Erchonia's laser products: Q: A: Well, when you said that the lasers were available outside the door, whose laser was available outside the door? Erchonia. Did you get the impression they were asking about the Erchonia laser or some other laser? The Erchonia. That was the only laser there, that was the only laser I knew of.

14 Q: 15 16 17 (Deposition of John Taft ("Taft Depo."), p. 57, ll. 3 ­ 11, attached hereto as Exhibit 2.) 18 Erchonia has presented no evidence contradicting Taft's testimony. 19 12. 20 with Miki Smith at the June 2002 Brimhall seminar, and the record Erchonia cites to does 21 not support this proposition. In fact, Taft's testimony was that he did not have any 22 personal knowledge of any such conversation: 23 Q: 24 A: 25 26 27 28 Q: A: I don't know, he may have. I mean she probably went up and asked him how much the laser was. OK. That sounds like an assumption, are you just -Well I'm just assuming that since she was interested, the only one there who had the laser was Erchonia and Miki Smith was their rep and so ­ Do you know if he talked to Jeanie Winters [sic] at that seminar? As set forth in paragraph 12, there is no evidence that Ms. Winner spoke A:

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Q: A:

You weren't party to that conversation? No.

(Taft Depo., p. 61, l. 21 ­ p. 62, l. 9.) Winner's testimony is unequivocal that she never spoke to Smith at the June 2002 Brimhall seminar. (Winner Depo., p. 25, ll. 1 ­ 20.) 13. REM does not dispute that at the June 2002 Brimhall seminar, Ms. Winner

learned of REM's Quantum IV Laser product and that the product was less expensive than Erchonia's laser products. However, Erchonia implies that this information was learned from Miki Smith, when, in fact, Ms. Winner's undisputed testimony was that she learned these things from Dr. Phillips and John Taft. (Winner Depo., p. 20, l. 12 ­ p. 24, l. 5.) Indeed, Ms. Winner was unequivocal that she never spoke to Miki Smith at the June 2002 Brimhall seminar. (Winner Depo., p. 25, ll. 1 ­ 20.) 14. REM does not dispute that Ms. Winner met Robert Moroney at the

June 2002 Brimhall seminar. Importantly, it is also undisputed that Ms. Winner and Mr. Moroney never discussed REM's Quantum IV Laser at the seminar. (Winner Depo., p. 29, ll. 13 ­ 19.) Erchonia has not presented any evidence contradicting this fact. 15. REM does not dispute that after the June 2002 Brimhall seminar,

Ms. Winner's husband, Dr. Winner, "was in an accident and broke his clavicle." However, the timing of that event has not been established by Erchonia. While Erchonia claims that the accident occurred "shortly" after the June 2002 Brimhall seminar, the record cited by Erchonia does not establish any date. Winner's testimony was that she did not remember the date that Dr. Winner broke his clavicle. (Winner Depo., p. 26, ll. 6 ­ 13.)

Miki Smith's undisputed testimony is that Ms. Winner did not contact him until August of 2002, while he was attending the annual Sturgis convention in South Dakota (Deposition of Miki Smith July 8, 2005 ("Smith Depo."), p. 81, l. 13 ­ p. 82, l. 16, attached hereto as Exhibit 3.) 16. REM does not dispute the factual allegations set forth in paragraph 16.

However, the record cited by Erchonia does not support those allegations. 17.­22. Not disputed.

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23.

As set forth in paragraph 23, REM does not dispute that Jeanne Winner

attempted to call Miki Smith on the cellular telephone confiscated by Steve Shanks, and that Ms. Winner, instead, reached Mr. Shanks. However, REM does dispute that the conversation concerned "Miki Smith's activities in providing a loaner laser to Jeanne Winner." The record cited by Erchonia does not support this statement. 24.­25. 26. Not disputed.

As set forth in paragraph 26, REM does not dispute that Mr. Moroney

provided Mr. Smith with a prototype Quantum IV Laser. However, the record cited by Erchonia does not establish that the prototype was provided to Mr. Smith in June of 2002. 27. As set forth in paragraph 27, REM does not dispute that Miki Smith was

employed by Erchonia in June of 2002. However, the record cited by Erchonia: (a) does not establish that there was a seminar in New Orleans in June of 2002; and (b) directly contradicts the statement that "Miki Smith took this Moroney prototype laser to [that] seminar." Mr. Smith's testimony indicates that Mr. Moroney sent a prototype Quantum IV Laser to Mr. Smith while he was at the New Orleans seminar for delivery to and evaluation by an individual named Tony Martin (Smith Depo., p. 171, l. 14 ­ p. 172, l. 21.) 28. As set forth in paragraph 28, REM does not dispute that Jeff Ulrey and

Brett Brimhall saw the prototype Quantum IV Laser at the New Orleans seminar. The implication of Erchonia's statement, however, is that these two individuals were potential Erchonia customers. There is no factual support for this implication and, importantly, Erchonia has not claimed that it lost laser sales to either Ulrey or Brimhall. 29. 30. Not disputed. As set forth in paragraph 30, REM disputes the implication that John Taft

referred Ms. Winner, Dr. Phillips and others to Miki Smith for the purpose of buying REM's Quantum IV Laser product. In fact, Taft's testimony is very specific in that he was directing people to Miki Smith concerning Erchonia's laser products. (Taft Depo., p. 57, ll. 3 ­ 25.)

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31.

REM does not dispute that there were a number of telephone calls between

Miki Smith and Robert Moroney between April and July 22, 2002. However, REM disputes any implication that there is any impropriety to these telephone conversations. Erchonia has failed to provide any evidence showing otherwise. 32. REM strenuously disputes Erchonia's contention that it has suffered damages

due to lost sales of lasers. This contention is not a factual assertion but, rather, a legal argument concerning what Erchonia must ultimately prove. Moreover, Erchonia has failed to cite to any evidence showing that it lost a single sale as a result of any improper action by REM. Indeed, the undisputed facts are that Ms. Winner learned of REM's Quantum IV Laser from Dr. Phillips and John Taft at the June 2002 Brimhall seminar, and that the reason she was inclined to purchase a Quantum IV Laser was because it was less expensive than Erchonia's laser products. (Winner Depo., p. 23, l. 5 ­ p. 24, l. 25.) There is no evidence that Dr. Phillips ever intended to purchase an Erchonia laser, or that she did not purchase an Erchonia laser as a result of any improper action by REM. (Id.,

p. 21 ­ 25.) In fact, Dr. Phillips has never purchased a Quantum IV Laser product from REM. (Declaration of Robert Moroney, ¶ 4, attached hereto as Exhibit 4.) Finally, Erchonia's claim that it lost five to twenty other laser sales as a result of REM's alleged tortious interference with the contract is purely speculative and based upon nothing more than the unsupported guesswork of Erchonia's president, Steve Shanks. (Rule 30(b)(6) Deposition of Erchonia June 10, 2005, p. 72, l. 11 ­ p. 73, l. 6; p. 80, l. 2 ­ p. 82, l. 2, attached hereto as Exhibit 5.) The inability to specify the exact number of allegedly lost sales, alone, proves this point.

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Dated: September 9, 2005

Respectfully submitted, By: s/ David G. Bray Michael S. Rubin David G. Bray MARISCAL WEEKS MCINTYRE & FRIEDLANDER, P.A. Robert R. Brunelli Benjamin B. Lieb SHERIDAN ROSS P.C. Attorneys for Robert E. Moroney, LLC, Robert Moroney, and A Major Difference, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on September 9, 2005, I electronically transmitted or caused to be transmitted the attached ROBERT E. MORONEY LLC'S RESPONSE IN OPPOSITION TO ERCHONIA MEDICAL, INC.'S SUPPLEMENTAL STATEMENT OF FACTS IN RESPONSE TO ROBERT E. MORONEY LLC'S CONSOLIDATED MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING ERCHONIA MEDICAL, INC.'S TORTIOUS INTERFERENCE WITH CONTRACT CLAIM on behalf of Robert E. Moroney, LLC, to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: David Geoffrey Bray: [email protected], [email protected] Michael S. Rubin: [email protected], [email protected] Ray Kendall Harris: [email protected], [email protected] Timothy R. Hyland: [email protected], [email protected], [email protected] Steven Plitt: [email protected], [email protected], [email protected] Dominic Lewis Verstegen: [email protected], [email protected], [email protected] Bradley R. Jardine: [email protected], [email protected], [email protected] Michael Warzynski: [email protected], [email protected] Scott A. Salmon: [email protected] Ira M. Schwartz: [email protected], [email protected], [email protected] Michael A. Cordier: [email protected], [email protected], [email protected] In addition, a copy of the above-referenced pleading was mailed to the following:

21 22 23 24 25 26 27 28 Robert R. Brunelli Benjamin B. Lieb Sheridan Ross P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141 Gordon Samuel Bueler Bueler Jones LLP 1300 N. McClintock Drive, #B-4 Chandler, AZ 85226 Gregory L. Miles Lori A. Curtis Davis Miles PLLC P.O. Box 15070 Mesa, AZ 85211-3070 Gale Peterson Cox Smith Matthews 112 E Pecan Street, Suite 1800 San Antonio, TX 78205-1521

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DATED THIS 9th day of September, 2005. MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. By: s/ David G. Bray

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