Free Motion to Strike - District Court of Arizona - Arizona

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Charles D. Onofry ­ 012837 ReNae A. Nachman ­ 022614 SCHNEIDER & ONOFRY, P.C. 3101 North Central Avenue Suite 600 Phoenix, Arizona 85012-2658 Telephone: (602) 200-1280 Fax: (602) 230-8985 E-mail: [email protected] Attorneys for Third-Party Defendant Chemical Lime Company of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA STEVEN SCHRUM, Plaintiff, vs. THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Defendant. THIRD-PARTY DEFENDANT CHEMICAL LIME COMPANY'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S STATEMENT OF MATERIAL FACTS IN RESPONSE TO CHEMICAL LIME'S MOTION FOR SUMMARY JUDGMENT RE: (1) NO PROOF OF NEGLIGENCE; (2) NO PROOF OF PROXIMATE CAUSATION; AND (3) NO FACTS TRIGGERING ANY INDEMNITY OBLIGATION (Assigned to the Honorable Robert C. Broomfield) (Oral Argument Requested) No. CIV04-619-PHX-RCB

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THE BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a corporation, Third-Party Plaintiff, vs. CHEMICAL LIME COMPANY OF ARIZONA, a corporation, ABC Corporations I-IV, fictitious corporations, Third-Party Defendant.

Third-Party Defendant Chemical Lime, through counsel undersigned, submits its Motion to Strike Portions of Plaintiff's Statement of Facts to Plaintiff's Response to Chemical Lime's Motion for Summary Judgment. Portions of Plaintiff's Statement of Material Fact contain inadmissible evidence.

Case 2:04-cv-00619-RCB

Document 104

Filed 04/07/2006

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This motion is supported by the attached memorandum of points and authorities, and the entire court file in this matter. MEMORANDUM OF POINTS AND AUTHORITIES Pursuant to Rule 56 F.R.Civ.P., Plaintiff is required to use "admissible" evidence to controvert a summary judgment motion. Plaintiff's Statement of Material Facts and Controverting Statement of Facts to Chemical Lime's Statement of Facts contain inadmissible evidence (i.e., unsworn testimony, hearsay and testimony that lacks foundation). Defendants request that the following statement of facts be stricken from the record as follows for the following reasons: PLAINTIFF'S STATEMENT OF FACTS: 1. Paragraphs 1-17, 19, 21-27, 29, 32-33, 35-39, 41-45, 47, 50-54, 56-57, 59, 60, 62-79, 80-95, 97, 99, 104 are merely summaries of deposition testimony in narrative form and are not proper evidence pursuant to LRCiv. 56.1 F.R.Civ.P. which provides : Any party filing a motion for summary judgment shall set forth separately from the memorandum of law, and in full, the specific facts on which that party relies in support of their motion. The specific facts shall be set forth in serial fashion and not in narrative form. LRCiv. 56.1 F.R.Civ.P. Plaintiff's narratives are improper evidence. The deposition testimony speaks for itself. 2. Paragraphs 18 and 46 refer to inadmissible hearsay evidence that other crew members made complaints is not admissible evidence and the corroborations of fellow employees. 3. Paragraphs 20, 28, lack foundation and are inadmissible evidence ­ Plaintiff is not a medical doctor or an expert qualified to give an opinion as to the cause of his bronchitis. Case 2:04-cv-00619-RCB Document 104-2 Filed 04/07/2006 Page 2 of 5

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4.

Paragraphs 30-31 ­ refers to deposition testimony by Frank Burg containing irrelevant, conclusory and inadmissible legal opinions by Frank Burg.

5.

Paragraph 34 refers to testimony by Frank Burg regarding a video on silicosis which is irrelevant to this case, is hearsay and not admissible evidence.

6.

Paragraphs 40 and 58 lack foundation referring to Frank Burg's testimony that the levels and composition of dust suggest that the air quality at the plant violated standards and are inadmissible.

7.

Paragraphs 48, 55, 61 lack foundation as Frank Burg has testified he is not a medical doctor and cannot give medical opinions.

8.

Paragraphs 96, 98, 100, 103 lack foundation as Dr. Lindsay testified he is not an expert regarding whether exposure to lime dust aggravates asthma, and no testimony that Dr. Lindsay is qualified to address future exposure to toxic inhalants.

9.

Paragraph 107 ­ Dr. Fernando's report is inadmissible hearsay and unsworn testimony.

PLAINTIFF'S CONTROVERTING STATEMENT OF FACTS: 10. Paragraphs 1, 2, 3, 4, and 6: The responses are merely summaries of deposition testimony and/or conclusory arguments and are merely summaries of deposition testimony in narrative form and are not proper evidence pursuant to LRCiv. 56.1 F.R.Civ.P. which provides : Any party filing a motion for summary judgment shall set forth separately from the memorandum of law, and in full, the specific facts on which that party relies in support of their motion. The specific facts shall be set forth in serial fashion and not in narrative form.

Case 2:04-cv-00619-RCB

Document 104-3

Filed 04/07/2006

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LRCiv. 56.1 F.R.Civ.P. Plaintiff's narratives are improper evidence. CONCLUSION Third-Party Defendant Chemical Lime Company respectfully requests that this Court enter an Order striking the portions of Plaintiff's Statement of Facts that do not satisfy LRCiv. 56.1 F.R.Civ.P. Dated this 7th day of April, 2006. SCHNEIDER & ONOFRY, P.C.

By

s/Charles D. Onofry Charles D. Onofry ReNae A. Nachman 3101 North Central Avenue, Suite 600 Phoenix, Arizona 85012-2658 Attorneys for Third-Party Defendant Chemical Lime Company of Arizona

Case 2:04-cv-00619-RCB

Document 104-4

Filed 04/07/2006

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CERTIFICATE OF SERVICE I hereby certify that on April 7th, 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: George T. Burgess, Esq. HOEY & FARINA, PC 542 South Dearborn, Suite 200 Chicago, Illinois 60605 Attorneys for Plaintiff William L. Thorpe, Esq. Sal J. Rivera, Esq. FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for BNSF I hereby certify that on April 7th, 2006, I served the attached document by facsimile and US mail on the following, who are not registered participants of the CM/EFC System:

s/Janice Froechte

Case 2:04-cv-00619-RCB

Document 104-5

Filed 04/07/2006

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