Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Ira M. Schwartz (I.D. No. 010448) Michael A. Cordier (I.D. No. 014378) DeCONCINI McDONALD YETWIN & LACY, P.C. 7310 N. 16th St., Suite 330 Phoenix, Arizona 85020 Telephone (602) 282-0500 (602) 282-0520 (Facsimile)
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

DECONCINI MCDONALD YETWIN & LACY, P.C.

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Suite 330 Phoenix, Arizona 85020

Erchonia Medical Inc., et al Plaintiff, v. Miki Smith, et al Defendants. Case No.:CIV 02-2036-PHX-MHM Consolidated with CIV 02-2048-PHX-MHM and CIV 02-2353-PHX-MHM 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 Erchonia Medical Inc., et al Plaintiff, v. Miki Smith, et al Defendants.

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7310 N. 16th Street,

Jrs/240631/noticedismissal

Case 2:02-cv-02036-MHM

Document 289

Filed 08/22/2005

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Robert E. Moroney, LLC Plaintiff, v. Erchonia Medical, Inc., et al Defendants. Erchonia Medical Inc.'s Supplemental Statement of Facts in Support of its Response to Robert E. Moroney LLC's Consolidated Motion for Summary Judgment Regarding Erchonia Medical Inc.'s Tortious Interference with Contract Claim. 1. Miki Smith was employed as the Vice-President of Sale and Marketing of MajesTec Innovations Inc., the predecessor to Erchonia Medical Inc of Smith. Deposition of Miki Smith dated February 26, 2003 (hereinafter "Smith deposition, 2003"), p. 40 ln. 2 ­ 7, relevant pages attached as Exhibit 1. 2. Miki Smith's employment with Erchonia terminated on July 22, 2002. Smith deposition, 2003, p. 24 ln. 22 ­ 25, relevant pages attached as Exhibit 1. 3. Robert Moroney had a conversation with Steven Shanks during which they discussed Miki Smith working for REM selling BioCleanse units. Deposition of Bob Moroney dated February 23, 2003 (hereinafter "Moroney deposition, 2003"), p. 78, ln. 3 ­ 23, relevant pages attached as Exhibit 2. 4. Miki Smith sold BioCleanse units for Robert E. Moroney LLC (REM) during the period October 2001 to January 2002. Deposition of Bob Moroney June 23, 2005 (hereinafter "Moroney deposition, 2005"), p. 77, ln. 14- p.79, ln. 25; p. 84, ln. 12 ­ 15, relevant pages attached as Exhibit 4.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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5.

Jeanne Winner is the administrator of the Winner Wellness Center in Atlanta Georgia. Deposition of Jeanne Winner October 8, 2004 (hereinafter "Winner deposition"), p. 10 ln. 22 ­ 25, relevant pages attached as Exhibit 5.

6.

Dr. Jack Winner is the husband of Jeanne Winner and they are co-owners of the Winner Wellness Clinic. Winner deposition, p. 9 ln. 7 ­ 9, relevant pages attached as Exhibit 5.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7.

Jeanne Winner attended a seminar presented by Dr. John Brimhall held in Atlanta, Georgia in June 2002. Winner deposition, p. 15 ln 15 through 17, relevant pages attached at Exhibit 5.

7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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Jeanne Winner attended this seminar for the purpose of learning how to use lasers in a chiropractic practice. Winner deposition, p. 15 ln. 15; p. 16, ln. 18; p. 24, ln. 10 ­ 12, relevant pages attached as Exhibit 5.

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Prior to attending this seminar she made a decision to purchase a laser for use in the chiropractic clinic. Winner Deposition, p. 17, ln. 11 - 19, ln. 13, relevant pages attached as Exhibit 5.

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At the seminar she heard from a salesman named John Taft that another laser, lower in price than the Erchonia laser, would soon be offered. Based upon hearing this she held off purchasing a laser at this seminar. Winner deposition, p. 20 ln. 12 ­ p. 21 ln. 25, relevant pages attached as Exhibit 5; Smith deposition, 2003, p. 57 ln. 22 ­ 24, relevant pages attached as Exhibit 1.

11.

At this seminar John Taft referred both Jeanne Winner and another Chiropractor, Bonnie Phillips to Miki Smith to discuss purchasing a laser. Deposition of John 3

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Taft dated June 13, 2005 (hereinafter "Taft deposition") p. 55 ln 4 ­ p. 57. ln. 12, relevant pages attached as Exhibit 6. 12. At this seminar she spoke to Miki Smith about purchasing a laser. Taft deposition p. 57. ln. 12 ­ 19, relevant pages attached as Exhibit 6. 13. At the seminar she learned that this lower cost laser was being offered by REM or Moroney. Winner deposition, p. 31, ln. 21 ­ 25, relevant pages attached as Exhibit 5. 14. At the Atlanta seminar Jeanne Winner met Bob Moroney. Winner deposition, p. 28 ln. 15 ­ 17, relevant pages attached as Exhibit 5. 15. Shortly after attending the Dr. Brimhall seminar in Atlanta, Dr. Winner was in an accident and broke his clavicle. Winner deposition, p. 19, ln. 10 ­ 12, relevant pages attached as Exhibit 5. 16. Because of this accident, Mrs. Winner wished to immediately obtain a laser to help treat her husband. Winner deposition, p. 18, lines 14 ­ 15, relevant pages attached as Exhibit 5. 17. Mrs. Winner contacted Bob Moroney to purchase one of his lasers from him. Winner deposition, p. 31, ln. 21 ­ 22, relevant pages attached as Exhibit 5. 18. During this conversation, Mr. Moroney indicated to her that he could not immediately provide her with a laser. Mr. Moroney suggested that she contact Miki Smith who may be able to help her by providing her with a loaner laser and provided her with Miki Smith's telephone number. Winner deposition, p. 32, ln. 2 ­ 5. relevant pages attached as Exhibit 5 ; Moroney Deposition, LLC, dated 4
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DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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February 28, 2003, p. 18, ln 24 - p. 19, ln. 12.; p. 22, ln. 5 ­ 21, relevant pages attached as Exhibit 7. 19. Jeanne Winner then contacted Miki Smith at the telephone number provided to her and spoke to Miki Smith about loaning her a laser until REM could sell her one. Winner Deposition, p. 35, ln. 13 ­ p. 36, ln. 22, relevant pages attached as Exhibit 5. 20. When Miki Smith provided the loaner laser to Jeanne Winner he did this for the benefit of REM. Deposition of Miki Smith dated July 8, 2005 (hereinafter "Smith deposition, 2005"), p. 81 ln. 13 ­ p. 85 ln. 9, relevant pages attached as Exhibit 3; Smith Deposition, 2003, p. 55 ln. 9 - p. 56, ln. 18, relevant pages attached as Exhibit 1. 21. In a lawsuit now pending as File No. 03-CV-1522-C in the Superior Court of Hall County, State of Georgia, REM has made a claim for the value of this loaner laser. Cross-Claim by Plaintiff Against Third-Party Defendants filed in Robert E. Moroney, LLC. v Jack Winner et al., paragraphs 3, 4 and 6 through 13, relevant pages attached as Exhibit 9. 22. Upon Miki Smith's termination of employment with Erchonia, Steve Shanks, on behalf of Erchonia, retook possession of the cellular telephone provided to Miki Smith while he was an employee of Erchonia. Smith Deposition, 2003, p. 221 ln. 5 ­ ln. 16, relevant pages attached as Exhibit 1. 23. After Erchonia repossessed this cellular telephone, Jeanne Winner attempted to call Miki Smith regarding the loaner laser and called this cellular telephone and spoke to 5
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DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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Steven Shanks regarding Miki Smith's activities in providing the loaner laser to Jeanne Winner. Winner deposition p. 41, ln. 4 ­ p. 42, ln. 9, relevant pages attached as Exhibit 5. 24. Smith was speaking to Moroney about leaving Erchonia at least as early as April 2002. Smith deposition, 2003, p. 148, ln 12 ­p. 149, ln. 1, relevant pages attached as Exhibit 1. 25. During some of the conversations between Smith and Moroney, between April and July 22, 2002, Smith and Moroney discussed the potential for Smith to work for REM. Moroney deposition, 2003, p. 84, ln. 17 ­ p. 86, ln. 18, relevant pages attached as Exhibit 2; Smith deposition, 2003, p. 180, ln. 6 ­ 25, relevant pages attached as Exhibit 1. 26. In June 2002, Moroney provided Smith with a prototype laser. Miki Smith, 2005, p. 169, ln. 11 ­ 177, ln. 3, relevant pages attached as Exhibit 3; Moroney deposition 2003, p. 132, ln. 12 ­ 20, relevant pages attached as Exhibit 2. 27. Miki Smith took this Moroney prototype laser to a seminar in New Orleans in June 2002, while employed by Erchonia. Smith deposition, 2005, p. 169, ln. 11 ­ p. 177, ln. 3, relevant pages attached as Exhibit 3. 28. While in New Orleans for this seminar, he showed the Moroney prototype laser to Drs. Jeff Ulrey and Brett Brimhall. Smith deposition, 2005, p. 169, ln. 11 ­ p. 177, ln. 3, relevant pages attached as Exhibit 3.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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29.

Miki Smith testified that he did not have lasers to sell for REM until August 2002. Smith deposition, 2005, p. 83, ln. 21 ­ p. 84, ln. 9, relevant pages attached as Exhibit 3.

30.

John Taft referred Jeanne Winner, Bonnie Phillips and others to Miki Smith for the purpose of buying lasers during the June 2002, Brimhall seminar in Atlanta. John Taft is a salesman who sold products for both Nutra West and Robert Moroney. Winner deposition p. 20 ln. 21 ­ p. 21 ln. 25, relevant pages attached as Exhibit 5; Smith deposition, 2003, p. 57 ln. 20 ­ p. 59 ln. 8, relevant pages attached as Exhibit 1.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

31.

There were many telephone calls made between Miki Smith and Robert Moroney between April and July 22, 2002. Smith deposition, 2003, p. 168 ln. 7 ­ p. 219 ln. 13, relevant pages attached as Exhibit 1.

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Erchonia suffered damages due to lost sales of lasers specifically including at least lost sales to Jeanne Winner and Bonnie Phillips. Shanks deposition, 2005, p. 80, ln. 2 ­ p. 82, ln. 2, relevant pages attached as Exhibit 8. DATED this 22nd day of August, 2005. DeCONCINI McDONALD YETWIN & LACY, P.C. By /s/Ira M. Schwartz Ira M. Schwartz Michael A. Cordier 7310 North 16th Street, Suite 330 Phoenix, Arizona 85020 Attorneys for Plaintiff Erchonia Medical Inc.

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Certificate of Service I certify that on August 22, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to those attorneys registered with CM/ECF: Michael Warzynski, Esq. JARDINE BAKER HICKMAN & HOUSTON PLLC 3300 N. Central Ave., Suite 2600 Phoenix, AZ 85012 Co-Counsel for Erchonia Medical Inc. Benjamin B. Lieb, Esq. Robert Brunelli, Esq. SHERIDAN ROSS PC 1560 Broadway, Suite 1200 Denver, CO 80202 Attorneys for Robert E. Moroney, LLC, Robert E. Moroney, and A Major Difference Inc. David Bray, Esq. MARISCAL WEEKS MCINTYRE & FRIEDLANDER PA 2901 N. Central Ave., Suite 200 Phoenix, AZ 85012 Attorneys for Robert E. Moroney, LLC, Robert E. Moroney, and A Major Difference Inc. Gregory L. Miles, Esq. Lori A. Curtis, Esq. DAVIS MILES PLLC 1550 E. McKellips Road, Suite 101 Mesa, AZ 85203 Attorneys for John and Claudette Brimhall Dominic L. Verstagen, Esq. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 N. Central Ave. Suite 1500 Phoenix, AZ 85012 Attorneys for John and Claudette Brimhall Scott A. Salmon, Esq. THE CAVANAGH LAW FIRM 1850 N. Central Avenue, Suite 2400 Phoenix, AZ 85004 Attorneys for George Gonzalez and Lorena Guzman

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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Gordon S. Bueler, Esq. BUELER JONES, LLP 1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 Attorneys for Miki Smith and KMS Marketing, Inc. /s/ Ira M. Schwartz

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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