Free Motion to Strike - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc. IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 Shannon Michael Clark, 9 Plaintiff, 10 v. 11 ValueOptions, Inc., 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 By: 25 26 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Defendant ValueOptions, Inc. ("ValueOptions"), through counsel, hereby moves the court to issue an order striking the second Affidavit of Michael Robinson, LCSW MOTION TO STRIKE SECOND AFFIDAVIT O F M ICHAEL ROBINSON, LCSW Case No. CIV 03-1344-PHX-EHC (MS)

("Robinson Affidavit"). Similar to the first affidavit of Michael Robinson filed by plaintiff, the filing of this affidavit comes well after the deadline for discovery, is based on unreliable foundation, is irrelevant and impermissibly advances improper legal conclusions. This motion is supported by the pleadings on file, together with the following memorandum of points and authorities. DATED this 31st day of January, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

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MEMORANDUM OF POINTS AND AUTHORITIES The Affidavit was Disclosed Beyond the Discovery Cutoff. As acknowledged by this court in its November 28, 2005 order, the deadline for discovery in this case was October 19, 2004. [DKT. 175]. The second Robinson Affidavit was filed on December 29, 2005. [DKT. 197]. Disclosure of this purported expert witness comes over a year after the discovery deadline established by this court of October 19, 2004. Similar to its denial of plaintiff's motion to reopen discovery and its previous order striking the first affidavit of Michael Robinson, this court should strike the Robinson Affidavit pursuant to the authority and discretion granted under Rule 37, Fed.R.Civ.P. II. The Affidavit Fails to Comply with Rule of Evidence 702 and Should Appropriately Be Stricken. Though this court granted plaintiff leave to refile the affidavit ins strict conformity

12 with its order, plaintiff has failed to comply. (DKT. 175). Similar to the first affidavit, the 13 second affidavit should also be stricken. Daubert established that the court has the task of 14 insuring that an expert's testimony rests on both a reliable foundation and that it is relevant. 15 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 579-80 (1993). 16 reliability standard is established by Rule 702's requirement that an expert's testimony 17 pertain to "scientific...knowledge," since the adjective "scientific" implies a grounding in 18 science's methods and procedures while the word "knowledge" connotes a body of known 19 facts or ideas inferred from such facts or accepted as true on good grounds. Id at 580. Rule 20 702 also requires that the testimony "assist the trier of fact to understand the evidence or 21 determine a fact in issue," which goes primarily to relevance by demanding a valid 22 scientific connection to the pertinent inquiry as a precondition to admissibility. Id. It is 23 within the discretion of the court to make a preliminary assessment of whether the 24 testimony's underlying reasoning or methodology is scientifically valid and properly can 25 be applied to the facts at issue. Id. 26 27 28 2 The

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The opinions contained in the second Robinson Affidavit are simply not reliable as required by Daubert. In order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Id at 590. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability. Id. The second Robinson Affidavit still advances opinions including statements of the impunity demonstrated by ValueOptions' employees, alleged failures in the plaintiff's evaluation process and opinions regarding proper treatment for plaintiff. [DKT. 197]. However, the second Robinson Affidavit fails to establish that Michael Robinson possesses the required "scientific knowledge" sufficient to qualify the opinions advanced. For this reason alone, the Robinson Affidavit should be stricken. Though the unreliable nature of the opinions advanced in the Robinson Affidavit alone is sufficient to strike it, Rule 702 further requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." Id at 591. This condition goes primarily to relevance and establishes that expert testimony which does not relate to an issue in the case is not relevant and, therefore, not helpful or admissible.1 Id. This consideration has been aptly described by federal courts as "fit", which though not always obvious, stands for the proposition that the scientific validity for one purpose is not necessarily scientific validity for other purposes. Id. As previously recognized by this court in its order of August 1, 2005, to establish liability against ValueOptions, and for the expert opinions of Michael Robinson to be relevant, plaintiff must identify not just knowledge, but "a municipal `policy' or `custom' that caused the plaintiff's injury." Com'rs of Brian County, Okl. v. Brown, 520 U.S. 397, 403 (1997). [DKT. 121]. The second Robinson
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The second affidavit fails to offer testimony relevant to how ValueOptions was deliberately indifferent to plaintiff's serious mental health needs through a 25 policy or procedure of ValueOptions. Basically, the only allegations that the affidavit may support, though it appears deficient in this regard as well, is some 26 form of negligence. Based on applicable case law, mere negligence is not enough 27 to survive summary judgment on plaintiff's claim. 24 28 3

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Affidavit is void of any such admissible opinions establishing the necessary elements of knowledge, custom or policy and should be stricken since it does not meet the relevance requirements of Rule 702. Claar v. Burlington Northern Railroad Company, 129 F.3d 499 (9 th Cir. 1994), is further instructive to application of the reliability and relevance requirements of Rule 702. In Claar, the court declared inadmissible the opinions of two of plaintiff's doctors since sufficient evidence was lacking that the conclusions relied upon scientific methods and procedures and that the conclusions were not mere subjective beliefs or unsupported speculation. Id. The Court of Appeals ultimately upheld the decision of the trial court finding the affidavits void of any explanation of the reasoning and methods underlying the conclusions, holding that the district court could not make the findings required by Rule 702 for admissibility. Id. Similarly here, the second Robinson Affidavit is lacking under Rule 702 and should be stricken. III. The Affidavit Further Improperly Advances Inadmissible Opinions on Legal Conclusions. It is widely recognized in federal courts, including the Ninth Circuit, that testimony

16 regarding a legal conclusion is improper. McHugh v. United Service Auto. Ass'n, 164 F.3d 17 18 19 20 21 the impunity of ValueOptions' employees is nothing more than a semantic alteration of his 22 previous affidavit and still constitutes impermissible legal conclusions. Another reason 23 justifying that the second Robinson Affidavit be stricken. 24 This principal specifically applied to the exclusion of expert testimony in a §1983 25 case where the court deemed inadmissible plaintiff's expert testimony. 26 Clearfield County Pennsylvania, 836 F.Supp. 1178 (W.D. Penn. 1993). In Herman, the 27 28 4 Herman v. 451, 454 (9 th Cir. 1999); United States v. Dibble, 429 F.2d 598, 602 (9 th Cir. 1970); Aguilar v. International Longshoremens Union Local No. 10, 966 F.2d 443, 447 (9 th Cir. 1992); Marx and Co. v. Diners' Club, Inc., 559 F.2d 505, 509-510 (2 nd Cir. 1999); U.S. v. Scholl, 166 F.3d 964, 973 (9 th Cir. 1999). The opinions advanced by Michael Robinson regarding

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court recognized that the plaintiff must meet her burden to offer evidence showing that the defendants knew or "should have known" of the decedent's suicidal intent and were intentionally indifferent to that knowledge. Id at 1184. In its analysis, the court recognized that the affidavit of plaintiff's expert, advancing conclusions that defendant's judgment and subsequent actions were negligent (in this case allegations equating to nothing more than negligence) or , failed to establish a §1983 civil rights violation. Id at 1186. The court further disregarded the opinions of plaintiff's expert since, similar to this case, the expert opined without establishing any factual foundation that the defendants had not been adequately trained to treat the defendant's condition resulting in deliberate indifference on the part of the correctional authorities. Id. Further, the court held that this was not only an improper opinion, but also insufficient to show the deliberate indifference required to raise a question of fact as to liability on the part of the municipality. Id. Herman further supports striking the secondRobinson Affidavit. IV. Conclusion Based on the foregoing, ValueOptions requests that this court strike the second Robinson Affidavit as it is untimely and advances inadmissible and irrelevant opinions. In addition, ValueOptions requests that this court not consider the affidavit for purposes of the summary judgment for the same reasons. DATED this 31 st day of January, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 23 24 25 26 27 28 5 ORIGINAL of the foregoing electronically filed this 31st day of January, 2006 with:

/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc.

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United States District Court 401 West Washington Phoenix, AZ 85003 Copy of the foregoing mailed this 31st day of January, 2006, to: Magistrate Judge Morton Sitver United States District Court 401 West Washington Phoenix, AZ 85003 Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, AZ 85734-4406 Plaintiff pro per ______________________________

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