Free Statement - 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 In compliance with Rule 56.1, Local Rules of Practice, ValueOptions, Inc. ("ValueOptions"), submits the following objections to plaintiff's controverting statement of facts in opposition of ValueOptions' motion for summary judgment. The evidence offered in opposition to ValueOptions' motion for summary judgment must be admissible under the Rules of Evidence. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9 th Cir. 1989). Plaintiff's controverting statement of facts are not admissible under the Rules of Evidence because they: (1) are not properly authenticated, (2) contain admissible hearsay, (3) contain conclusory statements not supported by evidence, (4) advance opinions that are reserved for experts, (5) are irrelevant in light of applicable law and (6) attempt to offer evidence after the close of discovery. The specific paragraphs is dispute correspond to the numbered paragraphs contained in plaintiff's controverting statement of facts. Separate headings respond to plaintiff's addendum to response to defendant's second motion for summary judgment and plaintiff's second addendum to plaintiff's response to defendant's second motion for summary judgment. Though addressed below, plaintiff's addendum and VALUEOPTIONS' OBJECTIONS TO PLAINTIFF'S CONTROVERTING STATEMENT OF FACTS Case No. CIV 03-1344-PHX-EHC (MS)

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second addendum should not be considered by this court for purposes of the summary judgment since they are not appropriate filings under the applicable Rules. Specific citations to legal authority, prior rulings of this court and Rules of Civil Procedure and Evidence supporting ValueOptions' objections are set out in detail in ValueOptions' objections to plaintiff's statement of facts and controverting statement of facts and do not require reproduction in this document. [Dkt. 148]. OBJECTIONS TO STATEMENT OF FACTS 3. Admit to the extent that plaintiff used illegal street drugs prior to 1995. Deny

plaintiff's assertion that the use of the illegal street drugs was for self-medication of his mental disorders as conclusory, speculative and as advancing improper expert opinion. 5. 6. Deny as conclusory, speculative and as advancing improper expert opinion. Admit to the extent that ADOC and plaintiff requested ValueOptions to

conduct a mental evaluation of plaintiff. Deny to the extent that this statement asserts ValueOptions was required to provide mental health care assistance to plaintiff. 9. ValueOptions objects to this statement as the document relied upon by

plaintiff is not properly authenticated. Further, the statement is objectionable as plaintiff lacks the proper foundation to advance this conclusory statement, it constitutes hearsay and improperly advances expert opinion. 10. ValueOptions objects as the document upon which plaintiff relies lacks

proper authentication. 11. ValueOptions objects as the document upon which plaintiff relies lacks

proper authentication and contains inadmissible hearsay. Additionally, plaintiff's statement is conclusory and speculative since it assumes facts not contained in the referenced documents. 12. ValueOptions objects to this statement as it is irrelevant.

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13.

ValueOptions objects as the document plaintiff relies upon has not properly

been authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 14. ValueOptions objects to this statement as it is irrelevant since plaintiff's

affidavit dated October 19, 2004 fails to identify any substance abuse treatment was received prior to the assessment performed by defendant Marshall in August, 2002. 15. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 16. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 17. 18. ValueOptions objects to this statement as it is irrelevant. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 19. ValueOptions objects to this statement as it relies on improperly authenticated

documents, is based on inadmissible hearsay of a publication, advances conclusory and speculative allegations and advances improper expert opinion. 20. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 21. 22. ValueOptions objects as this statement is irrelevant. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant.

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23.

ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 24. 25. ValueOptions objects as this statement is irrelevant. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 26. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 32. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 33. ValueOptions objects since the document plaintiff relies upon has not been

authenticated and contains inadmissible hearsay. ValueOptions objects since this statement is irrelevant. This statement is further objectionable as it advances statements that are conclusory, speculative and improperly invades the realm of expert opinion. 34. ValueOptions objects since the document plaintiff relies upon has not been This statement is further

properly authenticated and contains inadmissible hearsay.

objectionable as it is conclusory, speculative and improperly invades the realm of expert opinion. 35. ValueOptions objects as this statement is conclusory, speculative and

improperly invades the realm of expert opinion. 36. ValueOptions objects since the document plaintiff relies upon has not been

properly authenticated and contains inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant.

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37.

ValueOptions objects since the documents plaintiff relies upon have not been

properly authenticated and contain inadmissible hearsay. Further, ValueOptions objects since this statement is irrelevant. 38. Admit to the extent that ValueOptions contracts with the Arizona Department

of Health Services to arrange for the delivery of State created behavioral health services, and is the "regional behavioral health authority" for Maricopa County, Arizona. ValueOptions denies this statement to the extent that it asserts further facts. 39. ValueOptions objects since the documents plaintiff relies upon have not been

authenticated and contains inadmissible hearsay. This statement is further objectionable as it advances statements that are conclusory, speculative and improperly invades the realm of expert opinion. Finally, the unreliable nature and inadmissibility of Plaintiff's statements are evidenced by the difference between the percentages calculated in Plaintiff's Statement of Facts in Support of Motion for Summary Judgment ¶ 39 of 28% and 34% appearing in ¶ 39 of Plaintiff's Controverting Statement. [Dkt. 142]. 40. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

properly authenticated and contains inadmissible hearsay.

objectionable as it advances statements that are conclusory, speculative and improperly invade the realm of expert opinion. Further, this statement is irrelevant. 41. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

properly authenticated and contain inadmissible hearsay.

objectionable as it advances statements that are conclusory, speculative and improperly invade the realm of expert opinion. Further, this statement is irrelevant. 42. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

properly authenticated and contain inadmissible hearsay.

objectionable as it advances statements that are conclusory, speculative and improperly invade the realm of expert opinion. Further, this statement is irrelevant.

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43.

ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

properly authenticated and contains inadmissible hearsay.

objectionable as it advances statements that are conclusory, speculative and improperly invade the realm of expert opinion. Further, this statement is irrelevant. 44. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

properly authenticated and contains inadmissible hearsay.

objectionable as it advances statements that are conclusory, speculative and improperly invade the realm of expert opinion. Further, this statement is irrelevant. 45. ValueOptions objects since the documents plaintiff relies upon have not been This statement is further

properly authenticated and contains inadmissible hearsay.

objectionable as it advances statements that are conclusory, speculative and improperly invade the realm of expert opinion. Further, this statement is irrelevant. 46. ValueOptions objects as this statement contains inadmissible hearsay, is

conclusory, speculative, irrelevant and improperly invades the realm of expert opinion. 47. ValueOptions objects as this statement contains inadmissible hearsay, is

conclusory, speculative and irrelevant. 48. ValueOptions objects as this statement contains inadmissible hearsay, is

conclusory, speculative, irrelevant and improperly invades the realm of expert opinion. 49. ValueOptions objects as this statement contains inadmissible hearsay, is

conclusory, speculative and irrelevant. 50. ValueOptions objects as this statement contains inadmissible hearsay, is

conclusory, speculative and irrelevant. 51. ValueOptions objects as this statement contains inadmissible hearsay, is

conclusory, speculative, irrelevant and improperly invades the realm of expert opinion. 52. ValueOptions objects as this statement relies upon an improperly

authenticated document.

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53.

ValueOptions denies this statement to the extent that it limits Dr. Walters'

opinion in regard to the necessary assessment of plaintiff to a review of defendant Marshall's assessment. In reaching his conclusion, Dr. Walters also reviewed plaintiff's medical records. [Dkt. 58]. OBJECTIONS TO PLAINTIFF'S ADDENDUM Plaintiff's addendum attempts to offer the affidavit of Michael Robinson, LCSW, in support of his response in opposition to ValueOptions' motion for summary judgment. However, in the court's order dated November 28, 2005, this court granted ValueOptions' motion to strike the affidavit of Michael Robinson, LCSW. [Dkt. 175, 163]. The court granted ValueOptions' motion since Michael Robinson failed to offer a scientific basis for the opinions and that the affidavit was disclosed past the discovery deadline. Therefore, this court cannot consider the affidavit of Michael Robinson, LCSW, for purposes of this motion for summary judgment based on its prior order striking the affidavit. OBJECTIONS TO PLAINTIFF'S SECOND ADDENDUM Plaintiff's second addendum offers documents to support the controverting statement of facts ¶ 51. [Dkt. 162]. However, as with the affidavit of Michael Robinson disclosure of these documents is precluded by the discovery cutoff of November 18, 2004. [Dkt. 157]. These documents simply are not admissible. Further, even if they were not barred by the discovery cutoff, ValueOptions objects since the documents plaintiff relies upon have not been properly authenticated and contain inadmissible hearsay. This statement is further objectionable as it advances statements that are conclusory, speculative and improperly invade the realm of expert opinion. Further, this statement is irrelevant. /// /// /// ///

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RESPECTFULLY SUBMITTED this 16 th day of December, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 /s/ Brad M. Thies Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, AZ 85734-4406 Plaintiff pro per Original and one Copy of the foregoing e-filed with the Clerk this 16 th day of December, 2005. Copy of the foregoing mailed this 16 th day of December, 2005, to:

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

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