Free Motion in Limine - District Court of Arizona - Arizona

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Matthew D. Kleifield ­ 011564 Chad C. Baker ­ 023083 Julie R. Barton ­ 022814 KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902
Email: [email protected] Email: [email protected] (602) 331-4600

Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Defendants ("Sunstone") move this Court for its Order in limine excluding any statement, argument, testimony, or evidence of Plaintiffs alleged future special damages, including but not limited to medical expenses. Plaintiffs did not properly disclose, or provide discovery v. SUNSTONE HOTELS INVESTORS, L.L.C., SUNSTONE HOTEL INVESTORS, L.P. Defendant. IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT COURT OF ARIZONA MARVIN SAPIRO SAPIRO, his wife, and GLORIA No. CIV03-1555 PHX SRB DEFENDANTS' MOTION IN LIMINE NO. 6 REGARDING FUTURE HEALTH CARE EXPENSES AND TREATMENT (Oral Argument Requested)

Plaintiffs,

responses, identifying the nature, extent and basis of a claim for future medical expenses. This failure as well as their refusal to fully respond to Sunstone's attempt to discover a claim for future medical expenses deprived Sunstone the opportunity to challenge the validity of any future medical expenses. Any disclosure now, less than forty (40) days before trial would not provide Sunstone an adequate opportunity to investigate and challenge such a claim. The following Memorandum of Points and Authorities supports this Motion.
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MEMORANDUM OF POINTS AND AUTHORITIES The Federal Rules of Civil Procedure Rule 26 required plaintiffs to provide a

3 computation of any category of damages being claimed. Fed R. Civ. P. 26(a)(1)(C). In their 4 initial disclosure statement, Plaintiffs provi ded, in attached documents, "a detailed summary" of 5 past medical expenses totaling approximately $600,000. 6 Statement, p. 10, attached as Ex. A). 7 expenses to "a medical cost reserve of at least $1,000,000 for future medical expenses based on 8 the costs from specialized nursing care including, but not limited to physical therapy, [and] on9 going testing[.]" Id 10 Sunstone's Interrogatories to Plaintiffs inquired about future medical expenses 11 attributable to the incident. 12 Specifically, Sunstone asked: 13 14 15 16 17 18 that will be incurred in the future is not known at this time. (See Plaintiffs' Responses To 19 Interrogatories, p. 8, attached as Ex. C). 20 The Federal Rules of Procedure prohibit a Plaintiff from using any evidence at trial, a 21 hearing, or on a motion, not disclosed according to Rule 26. See Fed. R. Evid. 37(c)(1). 22 Additionally, in Arizona a Plaintiff alleging negligence is entitled to compensation for damages 23 sustaine d as a direct and proximate result of negligence, but only if the damages are "established 24 with reasonable certainty." Nunsuch ex rel. Nunsuch v. U.S., 221 F.Supp.2d 1027, 1034 25 -2Case 2:03-cv-01555-SRB Document 134 Filed 12/05/2005 Page 2 of 5

(See Plaintiffs' Initial Disclosure

Plaintiffs limited their disclosure of future medical

(See Defendants' Interrogatories, p.6, attached as Ex. B).

12.

State as to each item of medical expense attributable to the incident:

*** f) Will you incur medical expenses in the future as a result of the accident in question?_____. If so, state the amount of medical expenses which will be incurred in the future and state in detail the knowledge and source upon which you rely in support of this belief. Id. In response to Interrogatory 12(f), Plaintiff stated that "[t]he exact amount of medical expenses

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1035 (D.Ariz. 2001) (quoting Continental Life & Accident Co. v. Songer, 124 Ariz. 294, 304, 603 P.2d 921, 931 (1979)). "Evidence of future medical expenses must be definite with respect

3 to the duration, amount of treatment, and the cost in order to support an award for damages." 4 Nunsuch, 221 F.Supp.2d at 1035 (citations omitted). 5 Plaintiffs' disclosures which consisted of an estimation of a medical reserve and an 6 admission that they did "not know" the amount to be incurred in the future are not adequate 7 disclosures or discovery responses and do not possess sufficient specificity to permit an award 8 of future medical expenses. These disclosures did provide any meaningful information that 9 would permit Sunstone to investigate or to mount a challenge to the validity of future medical 10 treatment or expenses. 11 The insufficiency of these disclosures wo uld require Plaintiffs to disclose new evidence 12 "on the eve of trial" or present undisclosed evidence at trial. The truncated time frame that 13 would be created by any last minute disclosure would prejudice Sunstone by preventing an 14 adequate opportunity to analyze, respond, and challenge the future medical expense claim. 15 Plaintiffs' failure to properly respond to Sunstone's discovery requests, and Plaintiffs failure to 16 disclose information required by Rule 26, prohibits Plaintiffs from using any information 17 relating to future medical expenses as evidence at trail, a hearing, or on a motion. See Fed. R. 18 Civ. P. 37 19 Moreover, Plaintiffs did not disclose any expert for the purposes of discussing medical 20 evidence. Plaintiffs sole disclosed expert, Mr. Feije, admitted that he is not a medical doctor and 21 therefore not competent to opine about medical issues. (See Freije Depo., p.162:1-3, excerpts 22 attached as Ex. D). To sidestep any problems caused by the absence of a medical expert, 23 Plaintiffs may attempt to discuss future health care procedures with Plaintiffs' treating 24 physicians. Permitting these treating physicians to testify about the "possibility" of future 25 -3Case 2:03-cv-01555-SRB Document 134 Filed 12/05/2005 Page 3 of 5

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medical treatment and expenses would permit Plaintiffs to mock the disclosure requirements of the Rules of Civil Procedure and the reliability requirements of Rule 702 of the Federal Rules of

3 Evidence. Testimony about what "may" occur does not meet the definite standard required for 4 the evidence of future medical expenses. See Nunsuch, 221 F.Supp.2d at 1034-35. 5 Plaintiffs' failure to disclose evidence of future medical expenses should foreclose their 6 ability to introduce any such evidence at trial. Because admission of such evidence this late in 7 the litigation would prejudice Sunstone, and is prohibited by Rule 37(c)(1), Sunstone 8 respectfully requests the Court preclude Plaintiffs, Plaintiffs' Counsel, or Plaintiffs' witnesses 9 from presenting any evidence of, or making any argument or statement regarding, potential 10 future health care expenses of potential health care treatment. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -4Case 2:03-cv-01555-SRB Document 134 Filed 12/05/2005 Page 4 of 5

DATED this 5th day of December, 2005. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD A Professional Corporation By s/Chad Baker Matthew D. Kleifield Chad C. Baker Julie R. Barton 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1902 Attorneys for Defendants

COPY of the foregoing e-filed this 5 th day of December, 2005, with: United States District Court Clerk of the Court 401 West Washington Phoenix, Arizona 85003

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COPIES of the foregoing mailed this 5th day of December, 2005, to: Hon. Susan J. Bolton 401 West Washington Phoenix, Arizona 85003 Chloe Andrews Boies Schiller & Flexner LLP 33 Main Street Armonk, NY 10504 Attorney for Plaintiffs Marvin and Gloria Sapiro COPIES of the foregoing electronically delivered this 5th day of December, 2005, to: Ann M. Galvani Boies Schiller & Flexner LLP 33 Main Street Armonk, NY 10504 Attorney for Plaintiffs David W. Shapiro, Esq. Boise, Schiller & Flexner, L.L.P. 199 Harrison Street Oakland, CA 94612 Attorney for Plaintiffs Jorge Schmidt Boise, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. 2 nd Street Miami, Florida 33131-2144 Attorney for Plaintiffs Steven W. Davis, Esq. Boise, Schiller & Flexner, L.L.P. Bank of America Tower, Suite 2800 100 S.E. 2 nd Street Miami, Florida 33131-2144 Attorney for Plaintiffs s/C. Waight

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