Free Motion in Limine - District Court of Arizona - Arizona

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Mary H. Beard Admitted Pro Hac Vice FEDERAL EXPRESS CORPORATION 3620 Hacks Cross Road, Building B-3rd Floor Memphis, TN 38125 Telephone: (901) 434-8061 Facsimile: (901) 434-9279 Email: [email protected] FENNEMORE CRAIG, P.C. Lori A. Higuera (No. 017273) Alec R. Hillbo (No. 020185) 3003 North Central Avenue Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendant Federal Express Corporation UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA SEAN L. HARGROW, Plaintiff, v. FEDERAL EXPRESS CORPORATION, a Delaware corporation; JOHN and JANE DOES IX; BLACK CORPORATION I-X; WHITE LIMITED LIABILITY COMPANIES I-X, Defendants. DEFENDANT FEDERAL EXPRESS CORPORATION'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF DR. TIM TAYS No. 03-0642 PHX DGC

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Case 2:03-cv-00642-DGC Document 125 Filed 11/02/2006 Page 1 of 3

Defendant Federal Express Corporation ("FedEx") submits the following Motion in Limine to exclude Plaintiff Sean Hargrow's ("Plaintiff") proposed introduction of testimony by Tim Tays ("Tays") and other medical professionals at the trial of this matter on the grounds that he was never disclosed pursuant to Federal Rules of Civil Procedure, Rule 26(a)(2)(A) and Rule 26(a)(1)(A) and not disclosed in response to Interrogatories

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and Requests for Production of Documents under Federal Rules of Civil Procedure 33 and 34. Tays is not included on Plaintiffs' Initial Disclosures submitted on July 1, 2004, nor Supplemental Disclosures submitted on July September 28, 2004, and Second Supplemental Disclosures submitted on March 15, 2005, and Third Supplemental Disclosure submitted June 3, 2005. Plaintiff also did not submit expert witness

disclosures by the deadline of December 17, 2004. Thus, based on his failure to disclose Tays as required by Rule 26(a)(1)(A) this Court should preclude Plaintiff from calling him as a witness at trial. In response to a straight forward interrogatory for production requesting Plaintiff to identify all physicians or psychologists from whom he received treatment, Plaintiff failed to identify Tays. Additionally, in response to a straight forward RFP requesting Plaintiff to produce documents relating to his medical records, including each document relating to injury or illness, Plaintiff failed to produce any of Tays's records relating to his counseling, treatment, and medical examination or diagnostic testing. (Plaintiff's Responses to Defendant's First Set of Interrogatories No. 4 and Request for Production of Documents No. 15). Pursuant to Rule 26(e)(2): "A party is under a duty seasonably to amend a prior response to a[] . . . request for production . . . if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]" Inamed Corp. at 1117-1118. Plaintiff failed to meet his

obligations under Rule 26(e)(2). As set forth above, learning of Tays on the eve of trial places FedEx at a distinct disadvantage and constitutes unfair surprise. If permitted to testify, FedEx could not prepare for his cross examination as it has no idea what he will testify about and has none of his medical records with which to test the veracity and validity of his testimony.

Case 2:03-cv-00642-DGC

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Filed 11/02/2006

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DATED this 2nd day of November, 2006. Respectfully submitted,

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Case 2:03-cv-00642-DGC - 3 Document 125 Filed 11/02/2006 Page 3 of 3

/s/ Mary H. Beard Mary H. Beard FEDERAL EXPRESS CORPORATION

Lori A. Higuera Alec R. Hillbo FENNEMORE CRAIG, P.C. Attorneys for Defendant Federal Express Corporation

CERTIFICATE OF SERVICE I hereby certify that on November 2, 2006, 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 the following CM/ECF registrants: Mishka L. Marshall Marshall Law Group, P.C. 777 East Thomas Road, Suite 210 Phoenix, AZ 85014 /s/ Mary H. Beard Mary H. Beard