Free Motion in Limine - District Court of Arizona - Arizona

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Ira M. Schwartz (I.D. No. 010448) Michael A. Cordier (I.D. No. 014378) DeCONCINI McDONALD YETWIN & LACY, P.C. 7310 N. 16th St., Suite 330 Phoenix, Arizona 85020 Telephone (602) 282-0500 (602) 282-0520 (Facsimile)
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT
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IN AND FOR THE DISTRICT OF ARIZONA
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DECONCINI MCDONALD YETWIN & LACY, P.C.

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Erchonia Medical Inc., et al
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Case No.:CIV 02-2036-PHX-MHM Consolidated with CIV 02-2048-PHX-MHM and CIV 02-2353-PHX-MHM ERCHONIA MEDICAL INC.'S MOTION IN LIMINE RE TESTIMONY ABOUT STATEMENTS MADE BY CHUCK SHANKS

Plaintiff,
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v.
Suite 330 Phoenix, Arizona 85020

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Miki Smith, et al
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7310 N. 16th Street,

Defendants.
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Plaintiff Erchonia Medical, Inc. ("Erchonia") moves in limine to prohibit the introduction of any testimony regarding any statements purportedly made by Charles "Chuck" Shanks, deceased. Miki Smith executed a promissory note in favor of Majes-Tec Innovations Inc., predecessor to Erchonia. In an effort to avoid paying the note Smith has previously testified that Chuck Shanks told him that he did not need to pay the note. (As the Court will recall Chuck Shanks is Steve Shanks' father. Steve Shanks is the President of Erchonia).

Case 2:02-cv-02036-MHM

Document 369

Filed 07/16/2007

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However, Smith's testimony as to statements purportedly made to him by Chuck Shanks are legally inadmissible and, if allowed, would be improperly prejudicial to Erchonia. First, any testimony Miki Smith would give concerning statements made by Chuck Shanks is hearsay. Rule 801, Federal Rules of Evidence. The only evidence in this case as to Chuck Shanks statements with regard to the note is the testimony of Miki Smith. If Mr. Smith's testimony about what Chuck Shanks said is believed, it could be found to discharge Miki Smith from paying the note. Clearly Miki Smith's testimony as to what Chuck Shanks said is hearsay. Fed.R.Evid. 801. There is no applicable exception to the hearsay rule which would allow these statements to be admitted. Erchonia anticipates that Smith will argue that this is an admission by a party opponent. However, this is false. Chuck Shanks was never an employee, officer, or director, of Erchonia. Chuck Shanks never held any position with Erchonia, or its predecessor MajesTec Innovations Inc. Further, at the time when this discussion supposedly occurred Miki Any statement made by Chuck Shanks relating to Miki Smith supposedly not having to pay the note lack the necessary foundation to be binding on the company. Mr. Shanks had no authority nor did he have any apparent authority to take any actions on behalf of Erchonia (or its predecessors). Further, Miki Smith's deposition testimony is to the effect that Mr. Shanks told him he did not need to pay the note after he signed it. See Miki Smith Deposition July 8, 2005, pg. 123, ln. 21- pg. 124, ln. 13 (Pages attached as Exhibit A to this motion.) However, to the extent Miki Smith's state of mind is in question, it is his state of mind at the time he signed the note. Any statements Miki Smith wishes to attribute to Chuck Shanks after the time he

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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Case 2:02-cv-02036-MHM Document 369 Filed 07/16/2007 Page 2 of 5

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signed the note cannot have any bearing on Miki Smith's state of mind at the time he signed the note. For this additional reason such statements should be precluded at trial. Importantly, Chuck Shanks is now deceased. If he were living, he could dispute this testimony by Miki Smith. However, this is now impossible. To address a similar situation in another context Arizona has adopted the Dead Man's statute, A.R.S. §12-2251. This statute expresses Arizona's policy of prohibiting self-serving testimony that cannot be made the subject of cross-examination due to the death of the person who allegedly made the statement. While the Dead Man's statute specifically deals with decedent's estates, the policy is clear: no person should be permitted to offer testimony about statements attributed to a decedent, where the person offering the decedent's statements stands to benefit from those statements. In this situation it would be manifestly unfair to allow Miki Smith to testify about statements allegedly made by Chuck Shanks, when those statements would strongly benefit Miki Smith, but when those statements cannot be cross-examined and tested. In this situation the statements are of limited probative value, cannot be tested, and are highly prejudicial to Erchonia. For these additional reasons they should be excluded. Fed.R.Evid. 403. Any testimony by Miki Smith regarding statements purportedly made to him by Chuck Shanks must be excluded from trial because they are hearsay. Alternatively, such evidence should be excluded because it is highly prejudicial and violates Arizona public policy as embodied by the Dead Man's statute.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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Case 2:02-cv-02036-MHM Document 369 Filed 07/16/2007 Page 3 of 5

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Respectfully submitted this date: July 16, 2007. DeCONCINI McDONALD YETWIN & LACY, P.C.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

By s/Ira M. Schwartz Ira M. Schwartz Michael A. Cordier 7310 North 16rd Street, Suite 330 Phoenix, Arizona 85020 Attorneys for Plaintiff

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Case 2:02-cv-02036-MHM Document 369 Filed 07/16/2007 Page 4 of 5

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Certificate of Service I certify that on July 16, 2007, 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 those attorneys registered with CM/ECF: Michael Warzynski, Esq. JARDINE BAKER HICKMAN & HOUSTON PLLC 3300 N. Central Ave., Suite 2600 Phoenix, AZ 85012 Co-Counsel for Erchonia Medical Inc. Benjamin B. Lieb, Esq. Robert Brunelli, Esq. SHERIDAN ROSS PC 1560 Broadway, Suite 1200 Denver, CO 80202 Attorneys for Robert E. Moroney, LLC, Robert E. Moroney, and A Major Difference Inc. David Bray, Esq. MARISCAL WEEKS MCINTYRE & FRIEDLANDER PA 2901 N. Central Ave., Suite 200 Phoenix, AZ 85012 Attorneys for Robert E. Moroney, LLC, Robert E. Moroney, and A Major Difference Inc. Gregory L. Miles, Esq. Lori A. Curtis, Esq. DAVIS MILES PLLC 1550 E. McKellips Road, Suite 101 Mesa, AZ 85203 Attorneys for John and Claudette Brimhall Dominic L. Verstagen, Esq. KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 N. Central Ave. Suite 1500 Phoenix, AZ 85012 Attorneys for John and Claudette Brimhall Scott A. Salmon, Esq. THE CAVANAGH LAW FIRM 1850 N. Central Avenue, Suite 2400 Phoenix, AZ 85004 Attorneys for George Gonzalez and Lorena Guzman Gordon S. Bueler, Esq. BUELER JONES, LLP 1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 Attorneys for Miki Smith and KMS Marketing, Inc. /s/ Ira M. Schwartz 5
Case 2:02-cv-02036-MHM Document 369 Filed 07/16/2007 Page 5 of 5

DECONCINI MCDONALD YETWIN & LACY, P.C.

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7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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