Free Response in Opposition 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 ROBERT E. MORONEY LLC'S RESPONSE TO STATEMENT OF FACTS IN SUPPORT OF BRIMHALLS' MOTION FOR SUMMARY JUDGMENT

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 ("REM") hereby responds to the Statement of Facts in 28 Support of Brimhalls' Motion for Summary Judgment ("Brimhall S.O.F."), on a paragraph-by-paragraph basis: Case 2:02-cv-02036-MHM Document 285 Filed 08/22/2005 Page 1 of 5

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1. ­ 17. 18.

REM does not dispute the statements set forth in paragraphs 1 through 17. As set forth in Paragraph 18, Brimhall asserts that REM did not own the

loaner laser sent to Jeanne Winner ("Winner"). In fact, the loaner laser was loaned to REM to, in turn, loan to Winner. (Declaration of Robert Moroney ("Moroney Dec."), ¶ 4, attached hereto as Exhibit 1.) REM was responsible for the care and safe return of the loaner laser to Smith. (Id.) 19. As set forth in paragraph 19, Brimhall asserts that Winner received the

Quantum IV Laser from REM approximately two months after receiving the loaner laser. (Brimhall S.O.F., ¶ 19.) Winner's actual testimony is that she received the Quantum IV Laser two to three weeks after a Brimhall certification seminar taking place in Mesa, Arizona in the end of August of 2002. (Deposition of Jeanne Winner ("Winner Depo."), p. 115, l. 24 ­ p. 116, l. 3, attached hereto as Exhibit 2.) 20. ­ 22. REM does not dispute the statements set forth in paragraphs 20 through 22. 23. As set forth in paragraph 23, Brimhall's statements therein are legal

argument rather than a statement of fact. Winner testified that Brimhall met privately with her at the Arizona certification seminar and told her that Moroney and Smith were thieves. (Id., p. 101, l. 4 ­ p. 102, l. 18.) Brimhall represented to Winner that he was working together with Shanks to obtain the Quantum IV Laser from REM. (Id., p. 115, ll. 6 ­ 11; p. 140, l. 21 ­ p. 141, l. 9.) Brimhall also told Winner that whatever Steve Shanks said to Winner was true. (Id., p. 63, l. 7 ­ p. 64, l. 3; p. 141, l. 10 ­ p. 142, l. 23.) Winner trusted Brimhall based on his notoriety. (Id., p. 101, ll. 4 ­ 19; p. 143, ll. 1 ­ 15.) 24. 25. REM does not dispute the statements set forth in paragraph 24. As set forth in paragraph 25, Brimhall claims that Steve Shanks "arranged

for Jeanne Winner to have a laser to use at the time that he had the loaner laser picked up." (Brimhall S.O.F., ¶ 25.) Winner's testimony, however, is that Shanks exchanged an Erchonia laser for the loaner laser provided to Winner by REM. (Winner Depo., p. 40, l. 13 ­ p. 43, l. 16.)

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26.

As set forth in paragraph 26, Brimhall claims that Winner merely "gave the

REM laser to Steve Shanks . . . ," implying that Winner simply intended for Shanks to take title to REM's Quantum IV Laser. (Brimhall S.O.F., ¶ 26.) However, Winner's testimony is clear that she was providing the Quantum IV Laser to Shanks because Shanks had represented to her that he was authorized to confiscate the laser and would turn the laser device over to the FDA on her behalf. (Winner Depo., p. 75, ll. 3 ­ 17; p. 83, l. 22 ­ p. 84, l. 15; p. 125, l. 17 ­ p. 126, l. 5.) 27. 28. REM does not dispute the statements set forth in paragraph 27. As set forth in paragraph 28, Brimhall asserts that Steve Shanks "encouraged

Jeanne Winner to pay REM for the REM laser." (Brimhall S.O.F., ¶ 28.) Winner's testimony, however, is that Shanks said there "wouldn't be anything wrong if you wanted to go ahead and pay for that unit." (Winner Depo., p. 79, ll. 19 ­ 21). Winner also testified that Shanks represented to her that she did not have to pay REM for the Quantum IV Laser because it did not have FDA approval. (Id., p. 53, ll. 21 ­ 23.) 29. 30. REM does not dispute the statements set forth in paragraph 29. As set forth in paragraph 30, Brimhall claims that Winner offered to pay for

the Quantum IV Laser and that such offer was refused by REM. (Brimhall S.O.F., ¶ 30.) Actually, Winner's offer to pay REM for the Quantum IV Laser was meant to satisfy the entire dispute between REM and Winner concerning the Quantum IV Laser and the second loaner laser provided to Winner. (Winner Depo., p. 86, l. 8 ­ p. 87, l. 3; Moroney Dec., ¶ 4.) Winner has never offered to simply pay REM for the Quantum IV Laser without condition. (Id.) REM continues to be owed $10,030.00 for the Quantum IV Laser that was taken from REM through Winner by the false and misleading statements of Shanks and Brimhall. (Id.)

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Dated: August 22, 2005

Respectfully submitted,

By:

s/ David Bray Michael S. Rubin David Bray MARISCAL WEEKS MCINTYRE & FRIEDLANDER, PA 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 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: Gregory L. Miles Lori A. Curtis DAVIS MILES, PLLC P.O. Box 15070 Mesa, Arizona 85211-3070 Steven Plitt Timothy R. Hyland Dominic L. Verstegen KUNZ, PLITT HYLAND DEMLONG & KLEIFIELD A Professional Corporation 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012 Attorneys for John W. Brimhall and Claudette Brimhall Ira M. Schwartz Michael A. Cordier DECONCINI MCDONALD YETWIN & LACY, P.C. 7310 N. 16 th Street, Suite 330 Phoenix, Arizona 85020 Attorneys for Erchonia Medical, Inc., George Leger and Gina Leger, Steven Shanks and Debbie Sue Shanks, Kevin Tucek and Carolyn Tucek Ray K. Harris FENNEMORE CRAIG, P.C. 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorney for Richard Amy and Deborah Amy Bradley R. Jardine, Esq. Michael Warzynski, Esq. JARDINE, BAKER, HICKMAN & HOUSTON, P.L.L.C. 3300 North Central Avenue, Suite 2600 Phoenix, Arizona 85012 Attorneys for Erchonia Medical, Inc. Scott A. Salmon, Esq. THE CAVANAGH LAW FIRM 1850 North Central Avenue, Suite 2400 Phoenix, Arizona 85004-4527 Attorney for George Gonzales and Lorena Guzman Gordon S. Bueler, Esq. 1300 N. McClintock Drive, Suite B-4 Chandler, Arizona 85226 Attorney for Miki Smith and KMS Marketing, Inc. _______________________________

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