Free Lodged Proposed Document - District Court of Arizona - Arizona

1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No.: CIV 02-2036-PHX-MHM Consolidated with CIV 02-2048-PHX-MHM and CIV 02-2353-PHX-MHM JOINT PROPOSED PRETRIAL ORDER

DECONCINI MCDONALD YETWIN & LACY, P.C.

7 8 Erchonia Medical Inc., et al
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

9 10 11 12 13 14 15 v.

Plaintiff,

Miki Smith, et al Defendants.

The following is the Joint Proposed Pretrial Order to be considered at the Final

16 Pretrial Conference set for August 13, 2007 at 3:00 p.m. 17 A. TRIAL COUNSEL FOR THE PARTIES. 18 19 20 21 22 23 24 25 26 Plaintiff: Ira M. Schwartz, Esq. Michael A. Cordier, Esq. 7310 N. 16th St., Ste 330 Phoenix, AZ 85020 Tel: (602)282-0500 Fax: (602)282-0520 [email protected] Defendant: Gordon S. Bueler, Esq. BUELER JONES, LLP
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1 2 3 B. 4 5

1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 (480) 775-6400 [email protected] STATEMENT OF JURISDICTION. Jurisdiction in this case is based on diversity of citizenship under Title 28 U.S.C. § 1332. Jurisdiction is not disputed.

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DECONCINI MCDONALD YETWIN & LACY, P.C.

C. 7 8

NATURE OF ACTION. Three counts remain for trial against Defendant Miki Smith. These counts are:

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

9 1. 10 Erchonia Medical seeks damages due to lost sales due to Miki Smith's breach 11 of his fiduciary duties to Erchonia, namely a breach of his duty of loyalty. 12 2. 13 Erchonia seeks damages due to Miki Smith's conversion of certain items of 14 Erchonia's equipment which were entrusted to him and which were never return to it. 15 3. 16 Erchonia seeks damages due to Miki Smith's breach of contract, namely his 17 failure to pay a promissory note in the principal amount of $50,000 which was due on 18 September 20, 2002. 19 D. 20 1. 21 a. Breach of Fiduciary Duty: 22 Erchonia must show that Miki Smith owed a fiduciary duty to Erchonia, that Miki Smith 23 breached this duty, that this breach caused damages to Erchonia. Restatement (Third) of 24 Agency §1.01 comment (e) and illustration 17; Restatement (Third) of Agency, §8.01 and 25 comment (c); Restatement (Second) Agency §393. See also AMERCO v. Shoen, 184 Ariz. 26
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Count II ­ Breach of Fiduciary Duty.

Count VI ­ Conversion

Count VIII ­ Breach of Contract

CONTENTIONS OF THE PARTIES. Plaintiff In order to prove a breach of fiduciary duty,

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1 150, 154, 907 P.2d 536, 539 (Ariz.App. 1995); Ornamental & Structural Steel, Inc. v. 2 BBG, Inc., 20 Ariz.App. 16, 19, 509 P.2d 1053, 1056 (Ariz.App. 1973). 3 Here, it is undisputed that Miki Smith was an employee and officer of Erchonia and

4 it is well settled law that an employee owes a duty of loyalty to his employer. See e.g. 5 McCallister Co. v. Kastella, 170 Ariz. 455, 825 P.2d 980, (Ariz.App.1992). 6 Erchonia contends that Miki Smith breached this duty by promoting and offering for

DECONCINI MCDONALD YETWIN & LACY, P.C.

7 sale laser products offered by Robert E. Moroney, LLC ("REM"). Erchonia contends that 8 Miki Smith promoted the sale of these products to doctors at a seminar he attended in
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

9 Atlanta and New Orleans in 2002 while employed by Erchonia (or its predecessor Majes10 Tec) and that, at these seminars, he told prospective purchasers of Erchonia's products to 11 hold off purchasing these products and to wait until REM's products were available for 12 sale. Erchonia contends this resulted in a minimum of two lost sales opportunities. 13 b. Conversion. In order to prove conversion, Erchonia must prove

14 that Miki Smith wrongfully asserted dominion or control over Erchonia's personal property 15 that interfered with Erchonia's rights to control such property. Focal Point, Inc. v. U-Haul 16 Co. of Arizona, Inc., 155 Ariz. 318, 746 P.2d 488 (App. 1986); Empire Fire & Marine Ins. 17 Co. v. First Nat. Bank of Arizona, 26 Ariz. App. 157, 546 P2d 1166 (1976). 18 Erchonia contends Miki Smith took certain pieces of Erchonia's equipment in his

19 position as an employee of Erchonia. These items of equipment were shipped by Erchonia 20 to certain seminar sites to be used at seminars sponsored by Erchonia. Miki Smith was 21 responsible for: arranging to have these items shipped to the seminar, maintaining the 22 equipment during the seminar and to ensure it was properly used or sold at the seminars; 23 and for arranging for the return of the equipment to Erchonia's office at the conclusion of 24 the seminar. Miki Smith arranged for the shipment of the equipment to several seminars, 25 however, despite requests from Erchonia, he never returned many of these items and 26
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1 further never accounted for the missing items. In at least one case, it is known that Miki 2 Smith retained some equipment personally after the termination of his employment. 3 Erchonia likewise contends that Miki Smith converted money in excess of $50,000 during 4 the time he was responsible for maintaining the company checks and check register. To 5 the extent this portion of the conversion claim was not resolved by Miki Smith signing a 6 promissory note, Erchonia is entitled to recovery for this amount.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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c. Breach of Contract (Promissory Note). In order to prove a breach

8 of contract on a promissory note, Erchonia must prove the existence of a contract with
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9 Miki Smith, that Miki Smith breached the contract, and that such breach has resulted in 10 harm to Erchonia. Graham v. Asbury, 112 Ariz. 184, 185, 540 P.2d 656, 657 (1975); Clark 11 v. Compania Ganadera de Cananea, S.A., 95 Ariz. 90, 94, 387 P.2d 235, 238 (1963). 12 In this case it is undisputed that Miki Smith signed a promissory note payable to

13 Erchonia on September 20, 2001 in the principal amount of $50,000, with a due date of 14 September 20, 2002. It is also undisputed that Miki Smith did not pay the note when due. 15 A copy of the promissory note will be introduced into evidence. 16 17 18 2. Defendant

Defendant, at the times is question, worked for Erchonia as Vice President of Sales

19 and Marketing. Defendant denies the claims made by Erchonia that he breached fiduciary 20 duties to the company or that he converted company property. The basis of these claims is 21 that Smith improperly took monies and product from the company. Smith contends that 22 23 his supervisor, Steve Shanks, authorized him to write checks from the company ledger. 24 Smith and the Shanks family were friends long before Smith moved to Arizona to work for 25 26
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the company at their request. 4

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In addition, Smith contends that the promissory note was procured by duress

2 and coercion by the Shanks family. Smith has testified that he was not in his right mind 3 because of his associations with the Church controlled and directed by Charles Shanks, 4 Steve Shanks father. In addition, the promissory note, if valid, represents an accord and 5 satisfaction of the Plaintiff's claims of conversion and breach of fiduciary duty because the 6 note was obtained by the Plaintiff to satisfy the claimed conversion of company funds.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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STIPULATIONS AND UNCONTESTED FACTS. Uncontested Facts. 1) Erchonia Medical Inc. was at all relevant times an Arizona corporation

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10 with its principal place of business in Mesa, Arizona. 11 12 13 2) 3) 4) Erchonia is owned by Steven Shanks and Kevin Tucek. Miki Smith is a resident of Colorado. Erchonia was formed in June 28, 2002 by the merger of Majes-Tec

14 Innovations, Inc. and Tuco Innovations, Inc. At the time, Majes-Tec was owned by Steve 15 Shanks and Tuco was owned by Kevin Tucek. (For convenience, hereinafter when the 16 term "Erchonia" is used, it shall refer to either Erchonia or its predecessors as applicable.) 17 5) Erchonia is the successor in interest of the promissory note signed by

18 Miki Smith dated September 20, 2001. 19 20 6) 7) Erchonia is in the business of selling therapeutic medical products. Among the products sold by Erchonia are its low level laser devices

21 known as the PL series of lasers. 22 8) Other products sold by Erchonia include its Percussor and Adjustor.

23 These are therapeutic devices used primarily by chiropractors. 24 9) Steve Shanks and Miki Smith have known each other for many years.

25 They knew each other prior to the time Majes-Tec was formed. 26
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10)

Majes-Tec was originally formed in Colorado. It was formed as a

2 marketing company and was principally in the business of selling the innovative medical 3 products designed and manufactured by Kevin Tucek, through his company Tuco. 4 5 Arizona. 6 12) Smith began working for Majes-Tec in 1998 and he set up its 11) In approximately 1998, Steve Shanks decided to move Majes-Tec to

DECONCINI MCDONALD YETWIN & LACY, P.C.

7 operations in Arizona. 8
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

13) 14)

Miki Smith was the first employee hired by Majes-Tec. In his position Miki Smith was actively involved in the sales of Tuco's

9

10 products, which were sold through Majes-Tec. 11 16) As part of his position with Majes-Tec, Miki Smith was responsible

12 for paying bills for Majes-Tec. 13 14 Majes-Tec. 15 16 Tec. 17 19) Miki Smith retained that position when Majes-Tec and Tuco merged 18) Miki Smith was employed as the Vice-President of Sales for Majes17) Miki Smith further had possession and control of the checkbook for

18 to form Erchonia. 19 20) As a significant part of the marketing of its products, Erchonia and its

20 predecessors sponsored and presented seminars in the use of its products. 21 21) These seminars were held frequently throughout the year at various

22 locations in the United States. 23 24 25 26
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22)

Miki Smith was actively involved in these seminars.

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23)

Miki Smith would attend many of these seminars for Erchonia (or its

2 predecessors), and at these seminars, he would demonstrate the use of the equipment and 3 take orders for the purchase of the equipment. 4 24) Miki Smith would frequently be responsible for arrange for equipment

5 from Erchonia to be delivered and used at the seminars and for seeing that unsold 6 equipment was returned to Erchonia after the seminars concluded.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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25)

Prior to 2002, Robert E. Moroney, LLC ("REM") had been a

8 distributor of some of Erchonia's products.
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

9 10 REM. 11

26)

In early 2002, Erchonia terminated its business relationship with

27)

In spring of 2002, REM was developing a laser product designed to

12 compete with the laser products offered by Erchonia. 13 14 28) 29) Miki Smith was employed by Erchonia until July 22, 2002. In the spring of 2002, while Miki Smith was employed by Erchonia,

15 Miki Smith has several conversation with Robert E. Moroney, the principal of REM. 30) 16 Prior to attending a seminar for Erchonia in New Orleans in early July 2002, Robert

17 Moroney provided Miki Smith with a Quantum IV Laser. 18 31) Miki Smith showed the Quantum IV Laser to doctors who attended

19 the New Orleans seminar. 20 32) In 2002, REM had discussions with Jeanne Winner concerning her

21 potential purchase of a laser device from REM. 22 33) As part of the discussions between Jeanne Winner and REM

23 concerning Jeanne Winner's potential purchase of a laser, Miki Smith, while still an 24 employee with Erchonia, had a conversation with Jeanne Winner regarding him providing 25 her with a "loaner" laser. 26
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1 2 3 4 5 NONE. 6 Stipulations The parties stipulate and agree: 1) All of the proposed exhibits are authentic, except for the following:

DECONCINI MCDONALD YETWIN & LACY, P.C.

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2)

That Miki Smith signed a promissory note payable to Majes-Tec dated

8 September 20, 2001, and that the copy of the note submitted as an exhibit in this matter is a
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9 true and correct copy of that promissory note. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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E.

CONTESTED ISSUES OF FACT AND LAW. 1. Plaintiff

Contested Issues of Fact and Law: A. Breach of Fiduciary Duty 1. Did Miki Smith offer REM's laser for sale while

employed by Erchonia? Plaintiff contends Yes.

2.

Did Miki Smith tell potential customers of Erchonia's

products not to purchase Erchonia's products while employed by Erchonia? Plaintiff contends Yes. Defendant contends no.

3.

Did Miki Smith attempt to sell REM's lasers while

employed by Erchonia? Plaintiff contends Yes.

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1 2 3 4 5 6

Defendant contends no.

4.

Did Miki Smith owe a duty of loyalty to Erchonia while

employed by Erchonia? Plaintiff contends Yes. Defendant contends no.

DECONCINI MCDONALD YETWIN & LACY, P.C.

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5.

Were Miki Smith's actions in attempting to sell REM's

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lasers while employed by Erchonia a breach of his fiduciary duties to Erchonia? Plaintiff contends Yes. Defendant contends no.

6.

Did Miki Smith breach his fiduciary duties to Erchonia?

Plaintiff contends Yes. Defendant contends no and that Defendant did not owe a special duty to Erchonia. 7. Did Miki Smith's breach of his fiduciary duties cause

damages to Erchonia? Plaintiff contends Yes. Defendant contends no.

8.

How much in damages did Erchonia suffer as a result of

Miki Smith's breach of his fiduciary duties? Plaintiff contends a minimum of $30,000.

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Defendant contends that he did not cause damages to Plaintiff. B. Conversion. 1. Smith? Plaintiff contends Yes. Did Erchonia ship product to seminar at the direction of Miki

DECONCINI MCDONALD YETWIN & LACY, P.C.

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2.

Did Miki Smith sign forms indicating that he was responsible

for the items shipped to these seminars? Plaintiff contends Yes.

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3.

Was all the equipment shipped to the seminars at Miki Smith's

direction sold or returned? Plaintiff contends No. Defendant contends yes.

4.

Did Miki Smith remain in possession of some Erchonia

property after termination of his employment? Plaintiff contends Yes. Defendant contends no. 5. Was Miki Smith authorized to retain possession of any

Erchonia equipment upon termination of his employment? Plaintiff contends No. Defendant contends yes.

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1 2 3 4 5 6

6.

Was at least one laser, which was in Miki Smith's possession

upon termination of his employment shipped to Jeanne Winner? Plaintiff contends Yes.

7.

Was the laser shipped to Jeanne Winner by Miki Smith done

for the benefit of REM? Plaintiff contends Yes. Defendant contends no. 8. Has Erchonia been damaged by Miki Smith's conversion of

DECONCINI MCDONALD YETWIN & LACY, P.C.

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Erchonia's property? Plaintiff contends Yes. Defendant contends that he did not convert Plaintiff's property. 9. How much in damages has Erchonia suffered due to Miki

Smith's conversion of its property? Plaintiff contends he converted approximately $119,330 in equipment and over $50,000 in funds. Defendant contends that he did not cause Plaintiff any damages as a result of conversion of property. C. Breach of Contract (Promissory Note). 1. Miki Smith signed a promissory note payable to Erchonia.

This note was due September 20, 2002. This note has remained unpaid. Is this note valid? Plaintiff contends Yes. Defendant contends no. the note? 2. Is there any valid legal defense to

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1 2 3 4 5 6 3.

Plaintiff contends No. Defendnat contends yes. How much has Erchonia been damaged due to Miki Smith's

failure to pay the promissory note? Plaintiff contends $50,000 in principal, plus interest as provided for in the note from September 20, 2002 until paid in full (plus attorneys' fees). Defendant contends that the note is invalid and that he owes nothing under it.

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2.

Defendant

Contested Issues of Fact and Law:

a.

Whether the principals of Erchonia coerced Smith into signing a

promissory note with Erchonia in September 2002. b. Whether the principals of Erchonia used improper duress on Smith

before he signed a promissory note with Erchonia in September 2002. c. Did Erchonia's principals authorize Smith to write checks to himself

from the company's account. d. Does the promissory note, if valid, represent an accord and

satisfaction of the Plaintiff's claims of conversion and breach of fiduciary duty. Breach of Contract (Promissory Note)

1.

Was the note executed under duress? 12

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1 2 3 4 5 6 2.

Plaintiff contends No. Defendant contends Yes.

Did the Plaintiff exercise undue influence in obtaining

Defendant's signature on the Note? Plaintiff contends No. Defendant contends Yes.

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9 10 11 12 13 14 15 16 17 18 F.

3.

Is the note void or voidable? Plaintiff contends No. Defendant contends Yes.

LIST OF WITNESSES. 1. Plaintiff a. Steven Shanks, c/o DeConcini McDonald Yetwin & Lacy, P.C., 7310 N. 16th St., Suite 330 Phoenix, AZ 85020 (602) 282-0500

Mr. Shanks will testify concerning the nature of Erchonia's business (and the

19 business of its predecessors), its relationship with Miki Smith, the hiring of Miki Smith, 20 Mr. Smith's responsibilities with Erchonia, his handling of the checkbook for Erchonia, his 21 responsibilities for Erchonia equipment and how that equipment was used at Erchonia's 22 23 seminars; the promissory note signed by Miki Smith and the circumstances surrounding his 24 signing the note; and damages related to all causes of action. Mr. Shanks will be called to 25 26
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testify. 13

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1 2 3 4 5 6 Mr. Tucek may testify concerning Erchonia's business and the business of its b. Kevin Tucek c/o DeConcini McDonald Yetwin & Lacy, P.C., 7310 N. 16th St., Suite 330 Phoenix, AZ 85020 (602) 282-0500

DECONCINI MCDONALD YETWIN & LACY, P.C.

7 predecessor companies, Erchonia's relationship with Mr. Smith, the use of the equipment 8 at Erchonia's seminars, Mr. Smith's responsibilities as an employee of Erchonia; the
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

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circumstances surrounding Mr. Smith signing the promissory note and damages suffered by Erchonia. Mr. Tucek may be called to testify. c. John Shanks c/o DeConcini McDonald Yetwin & Lacy, P.C., 7310 N. 16th St., Suite 330 Phoenix, AZ 85020 (602) 282-0500 Mr. Shanks will testify concerning Erchonia's relationship with Miki Smith, Miki

17 Smith's responsibilities with the company, company procedures regarding the use of 18 19 20 circumstances surrounding Miki Smith's termination of his employment and the 21 circumstances surrounding Miki Smith's execution of the promissory note. Mr. Shanks 22 may also testify concerning damages. Mr. Shanks will be called to testify. 23 24 25 26 d. Debra Engolia c/o DeConcini McDonald Yetwin & Lacy, P.C., 7310 N. 16th St., Suite 330 Phoenix, AZ 85020 (602) 282-0500
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equipment at Erchonia sponsored seminar and Miki Smith's involvement at seminars; the

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1 2 Ms. Engolia may testify concerning Miki Smith's employment with Erchonia, his

3 responsibilities with Erchonia, his role in Erchonia sponsored seminars and dealing with 4 Erchonia equipment, his travel to seminars, the termination of his employment, and his 5 execution of the promissory note. While Ms. Engolia may testify in this matter, it is 6

DECONCINI MCDONALD YETWIN & LACY, P.C.

7 believed she is unlikely to testify at trial. 8
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

9 10 11 12

e. Miki Smith c/o Gordon S. Bueler, Esq. BUELER JONES, LLP 1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 It is anticipated that Mr. Smith may testify at trial concerning his actions in promoting the sale of the REM laser, the timing of those activities, his actions in signing

13 14 15 16 17 18 19 deposition. While Dr. Brimhall may testify in this matter, it is believed he is unlikely to the promissory note and the circumstances related to that. Mr. Smith may testify at trial. f. John Brimhall, D.C. 1618 E. Fairfield St. Mesa, AZ

Dr. Brimhall may testify regarding those items discussed during his

20 testify at trial. 21 22 23 24 25 26
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g.Those witnesses who will testify by deposition transcript only as listed below. 2. Defendant a. Miki Smith

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1 2 3 4 5 6 H. G.

b. c. EXPERTS.

Robert Moroney All witnesses listed by Plaintiff.

There are no experts who will testify for either party. LIST OF EXHIBITS. 1. # 1. Plaintiff Exhibit Promissory Note dated September 20, 2001 signed by Miki Smith (Exhibit 4 to Miki Smith '05 depo). Letter from M. Smith to S. Shanks (Doc. No. ERC 04513) (Exhibit 9 to Miki Smith `05 depo). List of Loaner Items (Exhibit 3 to Miki Smith `05 depo). Erchonia PL4 Laser Unit. Erchonia Percussor Unit. Erchonia Adjustor Unit. Majes-Tec Innovations Inc. Check Detail Register Jan. 1998- May 2000 (Exhibit 5 to Miki Smith `05 depo). Majes-Tec Innovations Check Nos. 2011, 1621, and 1692 (Exhibits 6, 7 and 8 to Miki Smith `05 depo). KMS website pages (Exhibit 1 to Miki Smith `05 depo). Miki Smith's Responses to Plaintiff's Second Set of Discovery Requests 16 Obj. Description

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10. 9. 8. 4. 5. 6. 7. 3. 2.

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1 2 3 4 5 6 13. 11. 12. Quantum IV Laser Miki Smith's Statement of Facts in Support of Response to Motion for Summary Judgment and attachments Employee Non-compete and Confidentiality Agreement (Exhibit 5 to Miki Smith '03 depo).

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9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. #

2.

Defendant Description Obj. Description

Complete check register for Erchonia at all times relevant. Complete set of Erchonia checks and corresponding check registers for all times relevant

INFORMATION FOR COURT REPORTER.

Each party shall file a Notice to Court Reporter ONE WEEK prior to the trial. The Notice shall contain the following information: (1) Proper names that may be used during trial. This should include the proper names of all witnesses. 17

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1 2 3 4 5 6 (5) (2) (3) (4) Acronyms that may be used during trial. Geographic locations that may be used during trial. Technical Jargon: Please list any technical names, medical terms or special jargon that may be used during trial. Case Names: Please provide any case names or case citations that may be sued during trial.

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If possible, please transmit a copy of the concordance from key depositions to the Court Reporter by electronic or paper correspondence. J. DEPOSITION TO BE OFFERED. 1. Plaintiff's Deposition Designations Name John Brimhall, D.C. (5/5/2003) Page:Line to Page:Line 137:11-12, 15-16, 19-21 138:9-12 139:19-24 140:13-15, 18-25 141:1, 23-25 142:1-4, 8-10, 25 143:1-9 144:3-11 145:1-20 164:7-14 179:9-10, 18-19, 21-22 180:1-14, 19-22 12:20-25 13:1-11 16:9-18 84:17-18, 21-25 85:1, 12-25 93:23-25 122:23-25 123:1-15 127:4-9 18

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George Gonzalez (3/7/2003)

Lorena Guzman (3/7/2003)

Robert Moroney (2/28/2003)

1 2 3 4 5 6 REM, LLC (2/28/2003)

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*Miki Smith (2/26/2003; 7/8/2005)

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132:1-20 133:10-25 16:17-24 18:14-18, 24-25 19:1-19, 23-25 20:1, 6-9 21:23-25 22:1-9, 14-16 23:22-24 39:18-23, 25 40:1-7, 11-17 139:19-25 140:2-5, 7-10 181:4-8 197:15-25 198:1-15 208:1-3, 6-11 227:17-24 237:19-23 239:14-25 240:1-4, 7-8, 24-25 241:1-4 249:21-25 250:1-11 9:8-10, 15-19 101:25 102:1-2 103:18-25 104:1-2 109:19-25 111:7-16 115:10-16 116:11-14 125:13-21 126:24-25 127:1-5 141:2-18 144:23-25 145:1-25 146:1-8, 13-25

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Kimberly Stockton (11/11/2004)

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Jeanne Winner (10/8/2004)

147:1-17 161:2-5 162:14-16 163:4-12 172:7-21 173:14-17, 23-25 174:1-3 177:1-3 178:17-24 185:20-25 186:1-25 44:6-19 46:3-25 47:1-14, 20-21 48:6-8, 15 49:1-25 50:1-25 51:1-11, 20-25 52:1-6, 13-23 53:3-8 57:14-16, 19-25 58:1-21 59:7-9 60:7-16 68:9-21 69:5-9, 16-25 70:1-4, 14-20 71:5-11, 16-25 72:1-6, 9-25 73:1-16 99:16-25 100:1-25 101:1 16:8-16 25:1-4 34:1-5, 8-15 35:4-6, 17-20 36:1-4 39:25 40:1-12

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1 2 3 4 5 6 John Taft (6/12/2005)

74:4-16 55:4 ­ 57:19

*Submitted for use in the event Miki Smith does not appear at trial. 2. Defendant's Objections:

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3.

Defendant's Deposition Designations: NONE. Name Page:Line to Page:Line

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4.

Plaintiff's Objections:

K.

MOTIONS IN LIMINE. 1. Plaintiff a. Erchonia Medical Inc.'s Motion in Lemine Re Testimony

About Statements Made by Chuck Shanks. 2. Defendants

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L.

LIST OF ANY PENDING MOTIONS. None.

M.

PROBABLE LENGTH OF TRIAL. The probable length of trial is two and a half days.

N.

TRIAL DATE. This matter is set for trial on September 18, 2007. This is a firm trial date and will only be vacated by this Court for good cause.

DECONCINI MCDONALD YETWIN & LACY, P.C.

7 8
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

O.

JURY DEMAND. The demand for a jury trial was timely made and is not disputed.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 P. P-2.

STIPULATED JURY INSTRUCTIONS, PROPOSED VOIR DIRE QUESTIONS, AND PROPOSED FORMS OF VERDICT shall be filed in accordance with the instructions contained in this Court's Order Regarding Pretrial Conference. See Exhibits A and B. CERTIFICATIONS. The undersigned counsel for each of the parties in this action do hereby certify and acknowledge the following: 1. 2. 3. All discovery has been completed. The identity of each witness has been disclosed to opposing counsel. Each exhibit listed herein (a) is in existence; (b) is numbered; and (c) has been disclosed and shown to opposing counsel. 4. The parties have complied in all respects with the mandates of the Court's Rule 16 Scheduling Order.

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5.

Unless otherwise previously ordered to the contrary, the parties have made all of the disclosures required by the Federal Rules of Civil Procedure.

4 APPROVED AS TO FORM AND CONTENT: 5

DECONCINI MCDONALD YETWIN & LACY, P.C.

6 s/Ira M. Schwartz Ira M. Schwartz, Esq. 7 Michael A. Cordier, Esq. 8 Attorney for Plaintiff
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

s/Gordon S. Bueler Gordon S. Bueler, Esq. Attorney for Defendant

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Based on the forgoing, IT IS ORDERED that this Proposed Pretrial Order jointly submitted by the parties is hereby APPROVED and is thereby ADOPTED as the official Pretrial Order of this Court. DATED this ____ day of __________, 2007.

__________________________________ Mary H. Murguia United States District Judge

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EXHIBIT A JOINT PROPOSED VOIR DIRE QUESTIONS Have you or any member of your family had prior dealings with any of the parties or counsel in this matter? OBJECTION:

DECONCINI MCDONALD YETWIN & LACY, P.C.

7 8
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

2.

What do you or did you like most about your job? OBJECTION:

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
Case 2:02-cv-02036-MHM Document 368

3.

What do you do in your spare time? OBJECTION:

4.

Do you belong to any civic, social, fraternal, union or professional organizations? If so, which ones? OBJECTION:

5.

Have you or any member of your family been involved in a situation where you feel your free will was compromised or overpowered? OBJECTION:

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6.

Have you or a family member ever been treated by a chiropractor? OBJECTION:

7.

Have you or a family member used any other form of non-traditional medicine? OBJECTION:

DECONCINI MCDONALD YETWIN & LACY, P.C.

7 8
7310 North 16th Street, Suite 330 Phoenix, Arizona 85020

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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