Free Response in Opposition to Motion - 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 25 26 27 28 ValueOptions, Inc. ("ValueOptions"), hereby submits its response and objections to plaintiff's supplemental documents in opposition to summary judgment. ValueOptions files this response pursuant to this Court's Order filed on January 4, 2006 allowing plaintiff to file additional documents in opposition to summary judgment. (Doc. 200). Evidence offered to oppose or support summary judgment must be admissible under the rules of evidence. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 (9 th Cir. 1989). The supplemental documents offered by plaintiff do not comply with this mandate. Plaintiff's supplemental documents are not admissible under the rules of evidence because they: (i) are not properly authenticated, (ii) contain inadmissible hearsay, (iii) contain conclusory statements not supported by evidence, (iv) advance opinions that are reserved for experts and (v) are irrelevant in light of applicable law. Authentication As recognized by this Court, to be admissible in the context of a motion for summary judgment, documents must be authenticated either through depositions or answers to interrogatories, or by being authenticated by and attached to an affidavit, in which case the VALUEOPTIONS, INC.'S RESPONSE TO PLAINTIFF'S SUPPLEMENTAL DOCUMENTS OPPOSING SUMMARY JUDGMENT Case No. CIV 03-1344-PHX-EHC (MS)

Case 2:03-cv-01344-EHC-HCE

Document 205

Filed 01/19/2006

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affiant must be a person through whom the exhibits could be admitted into evidence. U.S. v. Dibble, 429 F.2d 598 (9 th Cir. 1970) (emphasis added); Wright and Miller, Fed.Prac. and Proc. §222; Fed.R.Civ.P. 56(e). As noted by this Court previously, plaintiff has again "submitted various documents with his briefs which, although apparently received in response to request for production, are not authenticated." [Doc. 121, pg. 5, ln. 13-15]. This Court previously declined to consider plaintiff's statement of facts to the extent that they were derived from and dependent upon such documents. [ Doc. 121, pg. 5, ln. 15-17]. Plaintiff again attempts to improperly authenticate documents through his own declaration. (Doc.198). Plaintiff's attempt fails to properly authenticate the documents, even though they were received in response to a subpoena. Authentication is a "condition precedent to admissibility," and this condition is satisfied by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9 th Cir. 2002); Fed.R.Evid. 901(a). The Ninth Circuit has repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment. Id. (Citations omitted). In a summary judgment motion, documents authenticated through personal knowledge must be attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence. Id. at 774.1

Specifically, the Orr court held that a deposition transcript was not properly authenticated through an affidavit of counsel for plaintiff stating that the deposition was "a true and correct copy" because he lacked personal knowledge of the deposition. Id. The court held it was insufficient for a party to submit, without more, an affidavit from counsel identifying

A document can be authenticated [under Rule 901(b)(1)] by the witness who wrote it, signed it, used it, or saw others do so. 31 Wright and Gold, Federal Practice and Procedure: Evidence § 7106, 43 (2000). Federal Rule of Procedure 56(e) requires that affidavits be made on personal knowledge, that the affiant be competent to testify to the matters stated therein, and that certified copies of all papers referred to in the affidavit be attached thereto. Fed.R.Civ.P. 56(e). Plaintiff's authentication fails to comply with these two requirements. 2 Case 2:03-cv-01344-EHC-HCE Document 205 Filed 01/19/2006 Page 2 of 6

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the names of the deponent, the reporter, the action and stating that the deposition is a true and correct copy since such affidavit lacks foundation even if counsel were present at the deposition. Id. The Court further disallowed a memo of a witness for lack of foundation when counsel for plaintiff did not write the memo, did not observe the witness do so and was not familiar with the witness's signature. Id at 777. The Court held the memo was not authenticated simply by having been produced in discovery. Id. Similarly, the court denied admission of a letter for failure to submit an affidavit or deposition testimony from the author stating he wrote the letter and because the attempted introduction of the letter by attaching it to counsel for plaintiff's affidavit does not comply with Rule 56(e), which requires personal knowledge of the letter. Id. As in Orr, plaintiff's self-authentication of documents, except documents of which he would have personal knowledge, fails to satisfy the authentication requirement. As such, these documents should not be considered for purposes of summary judgment. Hearsay Even if plaintiff could provide appropriate authentication, the supplemental documents and statements advanced still constitute inadmissible hearsay. Hearsay is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Hearsay is inadmissible unless defined as non-hearsay or if it falls within a hearsay exception. Orr at 778. Orr held that extracts from a witness deposition were inadmissible hearsay when offered to prove the truth of the matter asserted that defendant submitted negative documents about plaintiff to another party. Id. at 779. Even if not offered to directly prove the truth of the matter asserted, statements or documents can still constitute inadmissible hearsay if the proponent seeks to draw an inference from them to prove the truth of the matter asserted. Id. All the documents offered by plaintiff as evidence in opposition to ValueOptions's summary judgment contain inadmissible hearsay.

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The Ninth Circuit has specifically recognized that newspaper articles clearly fall within the definition of hearsay and should not be considered in relation to a motion for summary judgment. Eisenstadt v. Allen, 113 F.3d 1240, (1997) WL 211313 (9 th Cir. 1997).2 Finally, in the absence of specific exceptions to the hearsay rule, publications are not admissible. Johnson v. William C. Ellis and Sons Iron Works, 609 F.2d 820, 822 (5 th Cir. 1980). Plaintiff's conclusory statements and supplemental documents rely upon hearsay to which no exception applies. As such, these statements should not be considered in relation to the motion for summary judgment. Improper Opinion and Conclusory Statements Plaintiff's statements based upon the supplemental documents further contain improper opinions and conclusory statements. Specifically, lay witnesses are precluded from expressing an opinion based on scientific, technical or other specialized knowledge within the scope of Federal Rules of Evidence 702. Fed.R.Evid. 701(c); Certain Underwriters at Lloyd's London v. Sinkobich, 232 F.3d 200, 204-205 (4 th Cir. 2000) (error to allow lay witness to answer hypothetical questions on matters exceeding scope of common experience). Plaintiff's statements are riddled with his opinions relating to mental health diagnosis, standards and procedures. Any such statements or documents are inadmissible and should not be considered in summary judgment. ValueOptions further objects to plaintiff's statement of facts since his statements are conclusory. Plaintiff also advances conclusions that other events, even events dissimilar from this own, somehow demonstrate the existence of a policy or procedure of ValueOptions as a municipality that constitutes the moving force behind the alleged constitutional deprivation. Evidentiary facts are required to support or oppose summary judgment motion and conclusory statements are not sufficient. Marshall v. East Carroll

Similarly, the letters and other documents offered by plaintiff constitute inadmissible hearsay, to which no exception applies. 4 Case 2:03-cv-01344-EHC-HCE Document 205 Filed 01/19/2006 Page 4 of 6

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Parish Hosp. Service Dist., 134 F.3d 319, 324 (5 th Cir. 1998); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7 th Cir. 1989) (a party to lawsuit cannot ward off summary judgment with an affidavit or deposition based on rumor or conjecture); National Steel Corp. v. Golden Eel Ins. Co., 121 F.3d 496, 502 (9 th Cir. 1997) (conclusory allegations of collusion, without factual support are insufficient to defeat summary judgment). Since plaintiff does not have sufficient knowledge or experience to advance these opinions or conclusions, any affected statements should not be considered by this Court on summary judgment. Plaintiff's Statements and the Documents are Irrelevant As recognized in Bennett, previously cited by plaintiff, acts allegedly showing an unwritten policy or procedure of a municipality must occur prior to the alleged liability causing event and be similar in nature to be relevant. Bennett v. City of Slidell, 728 F.2d 762, 768 (5 th Cir. 1984). In the present matter, plaintiff is alleging that ValueOptions acts constituted medical deliberate indifference in violation of his constitutional rights due to an allegedly inadequate SMI assessment and determination. None of the events referenced in the supplemental documentation are factually similar to the facts of this matter. Additionally, it does not appear that the events occurred prior to August of 2002. Therefore, the referenced events would be inadmissible to prove the existence of a policy or procedure existing at the time of the liability creating event. As such, plaintiff cannot meet his burden to establish a municipal policy or custom that caused his injury. Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403 (1997). This Court should not consider the supplementary documents offered by plaintiff or the statements made in relation to those documents. Conclusion Due to the lack of any admissible evidence showing a municipal policy or custom that caused plaintiff's injury, this Court should not consider the additional evidence offered by plaintiff. ValueOptions is entitled to summary judgment.

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DATED this 3 rd day of January, 2006. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. By: /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant

ORIGINAL AND ONE COPY of the foregoing electronically filed this 19th day of January, 2006, with: United States District Court 401 West Washington Phoenix, Arizona 85003 AND COPY of the foregoing mailed this 19th day of January, 2006 to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, AZ 85734-4406 Plaintiff pro per /s/ Pam Whitmore

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