GREENBERG TRAURIG, LLP ATIORNEYS AT LAW SUITE EAST CAMELBACK ROAD PHOENIX, ARIZONA () - Lawrence J. Rosenfeld, SBN Attorneys for Intervenors SW General, Inc. dba Southwest Ambulance; and Southwest Ambulance of Casa Grande, Inc., dba Southwest Ambulance and Rescue of Arizona BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS In the Matter of: ABC Ambulance, Applicant. NO. A-EMS- -DHS EMS No. SOUTHWEST INTERVENORS' MOTION IN LIMINE NUMBER [] TO EXCLUDE THE TESTIMONY OF ELIZABETH B. MONTY (Assigned to the Honorable Thomas Shedden) Intervenors SW General, Inc. dba Southwest Ambulance (CON No. ), and Southwest Ambulance of Casa Grande, Inc., dba Southwest Ambulance and Rescue of Arizona (CON No. ) (collectively, "Southwest"), by and through their attorneys undersigned, submit herewith their Motion in Limine Number [], excluding from this hearing all testimony of Ms. Elizabeth B. Monty ("Monty"), based on the description of her testimony included in Applicant's Third Supplemental List of Witnesses and Exhibits dated August, ("Applicant's List of Witnesses"). PHX v
RESPECTFULLY SUBMITTED this i.i day of September,. r-. U.l l- ",,, - ti)- CI: cl ~ ~«oo Vl~O«g "'E-<"'Zo ~ ~O,,? t::" o ~.,., o CI: «'" ::::: ~ \oil CXl ««CXl ill. ~ -'Z::E ~:::. \oil«z \oilui CI: I- :r:: ~ti)", «U.l.,., r-. '"N II awrence J. Rosenfeld East Camelback Road, Ste. Phoenix, Arizona Attorneys for Intervenors SW General, Inc. dba Southwest Ambulance; and Southwest Ambulance of Cas a Grande, Inc., dba Southwest Ambulance and Rescue of Arizona MEMORANDUM OF POINTS AND AUTHORITIES I. Ms. Monty Lacks Personal Knowledge to Authenticate Exhibits ABC- through ABC-I. Monty's testimony should be excluded as inadmissible and cumulative, as Applicant proposes to call her as a witness to "opine" that certain graphic summaries prepared by Mr. Neal Thomas ("Thomas") accurately reflect data retrieved from the Intervenors' ARCRs. Specifically, Applicant has summarized Monty's testimony, in its entirety, as follows: Elizabeth B. Monty, CPA, Managing Director of Veriti Consulting, LLC: "She will testify that she has reviewed supporting public record documents including ARCRs for Intervenors including Rural/Metro, PMT, American Ambulance, American Com trans, and Southwest Ambulance and has compared them to the graphic summaries that ABC Ambulance has prepared which are listed as Exhibits ABC- through ABC-I in this Second Supplemental List of Witnesses and Exhibits, and that these graphic summaries accurately reflect the contents of the ARCRs and other documents filed with the Department of Health Services filed by these Intervenors and illustrate discrepancies in the financial reporting of these Intervenors to the Arizona Department of Health Services." Applicant's List of Witnesses, ~ (emphasis added). PHX v - -
e-. '" I-< "s'"... cz:: "'-. ~~~ ",~o-<g "'E-o"::Zo ~ ~ ~ ~o u ~ V') o cz:: -<..:: ;g: :;: ~ C!l -< ~ -<~Gl...J Z::E ~ ~ ~ -< Z ~u~ cz:: I-< :r: ~<~ '"on r-. «) N The "graphic summaries" that Thomas prepared are, as noted above, listed as Exhibits ABC- through ABC- on Applicant's final witness and exhibit list. These documents purport to summarize certain costs and expenses derived from the ARCRs that were filed with the Arizona Department of Health Services. Monty's proposed testimony "that the graphic summaries [prepared by Thomas] accurately reflect the contents of the ARCRs" - is patently inadmissible. As a preliminary these exhibits. matter, Monty cannot lay the foundation needed to admit any of Applicant asserts that it was Thomas - and not Monty - who reviewed the ARCRs and prepared the summaries. is the proper witness to "validate" these exhibits.' Thomas, as the admitted author of these summaries, Before an exhibit may be entered into evidence, basic foundation requires that the witness identify or authenticate the exhibit, showing that the exhibit is or shows what it purports to be or show. See Ariz. R. Evid.,; Merrick v. United States Rubber Co., Ariz. App., P.d (Ariz. ). In order to authenticate an exhibit, the authenticating witness must have personal knowledge of its provenance. See Ariz. R. Evid.. In fact, Ariz. R. Evid. provides, in pertinent part, that "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." By Applicant's own admission, Monty did not assemble, compile, or prepare these exhibits, nor were they prepared under her supervision or at her direction. She will testify only that she "reviewed supporting public record documents including ARCRs for [Southwest] and has compared them to the graphic summaries that ABC Ambulance has prepared" and that "these graphic summaries accurately reflect the contents of the ARCRs and other documents filed with the Department of Health Services... " (Emphasis added.) It is Thomas - not Monty - Alternatively, if Thomas directed someone to prepare the exhibits, and that person did so under his supervision, Thomas may also be able to lay foundation on that basis. PHX v - -
c-. >Ll f-< "s'" - CI:: "'-. ;l~~ ",~o<:g "'E-<O::Zo ~ ~ ~ :::" u t:l.,., o CI:: <: :: : '" -<~Gl "'" o:l <:.~ ~ >-l Z::E ~ ~ "'" <: Z ","ui: Cl::f-<:r: e,:,:<~ >Ll.,., e-- '"N who thus must lay foundation for these "graphic summaries". Either he will succeed in doing so (in which case Monty's testimony is utterly unnecessary), or he will fail (in which case Monty, who did not prepare or direct the preparation of the documents, cannot "fix" the problem). Moreover, if Applicant intends to call Monty as an expert witness for this purpose, her testimony would still be inadmissible. Ariz. R. Evid. (a) provides, in pertinent part, that "[a] witness who is qualified as an expert... may testify... if: (a) the expert's scientific, technical, or otherwise specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue... " Monty's review of these exhibits does not meet this standard, as she is only confirming that certain numbers, which Thomas purports to have extracted from ARCRs and put on charts he created, match up. One does not have to be credentialed as a CPA - or, indeed, even have an undergraduate degree in accounting - to be able to make that simple comparison. Thomas, on direct, can explain what he did. If, on cross, it turns out that he did not do so accurately - that is, that the numbers on the "graphic summaries" do not match the numbers he purports to have taken from the ARCRs - the testimony of a CPA cannot remedy that error. II. The Proposed Witness Testimony is Cumulative Moreover, the prof erred testimony is, in its entirety, utterly cumulative of Thomas' testimony. That is, having Monty testify that "I checked Thomas' numbers and he correctly transferred them from the ARCRs to his summaries," is a complete time-waster. Either he did so or he didn't, and Thomas' testimony (on direct and cross) will settle the matter. Courts may exclude evidence when "its probative value is substantially outweighed by a danger of... undue delay, wasting time, or needlessly presenting cumulative evidence." Ariz. R. Evid.. Cumulative evidence that merely augments or tends to establish a point already proven (or disproven) by other evidence should be PHX v - -
r-. - t.il l- (.;)", II (/)- g::. ;l~~ ",~o«g "'E-< ex Z ~ ~ "? t;:e"u~v'i og::«ex~ ~ IoJ o:j «~ <CQ@.~...lz z ~::: IoJ«Z lojutj g:: I- :t ~(/)o.. «t.il or> r- '"N excluded. So, for example, if Thomas correctly transferred an item of data (for example, the number of ALS transports done by one of the Intervenors in, say, ) from that party's ARCR to his summary, he will testify "the ARCR says that the Intervenor did ALS transports in, and I put that same number,, on my chart, see?"; or, on direct or cross, it will turn out that the ARCR says "", but when he transferred it to his chart, he put "", in which case the trier of fact will conclude "You did it wrong". What, exactly, can Monty's testimony possibly add to this simplistic exercise? Nothing. See State v. Kennedy, Ariz.,, P.d, (Ariz. Ct. App. ) (evidence is cumulative where it "merely augments or tends to establish a point already proved by other evidence"). III. Conclusion For the reasons set forth herein, we respectfully request that the Administrative Law Judge issue an order in limine, excluding from evidence in this case all of the proposed testimony of Elizabeth B. Monty. RESPECTFULLY SUBMITTED this thday of September,. GREENBE'tG TRfX ORIG~AL of the foregoing e-filed this day of September,, with: Clerk, Office of Administrative Hearings West Washington, Suite Phoenix, Arizona La rence J. enfeld East Camelback Road, Ste. Phoenix, Arizona Attorneys for Intervenors SW General, Inc. dba Southwest Ambulance; and Southwest Ambulance of Cas a Grande, Inc., dba Southwest Ambulance and Rescue of Arizona PHX v - -
r-- U.l l- c.:ls", _ enc:z:. -e ;;:>'"..: - s s s s "'E-<c.:zo ~ ~ "? ~~ u ~ V") o c:z:..: c.: :::: ~ ~ ~..: ~ <CQ @.~ = z ::E ~ :e ~..:z ~uc C:Z:I-:r: e"enp.. -c U.l '" r- <') N II COpy of the foregoing e-mailed via the OAR portal (https://portal.azoch.com/oedf/), to: Honorable Thomas Shedden Administrative Law Judge Office of Administrative Hearings Will Humble, Director Arizona Department of Health Services Jan.Escotocaazdhs.gov Kevin Ray, Esq. Office of the Attorney General Attorneys for ADHS kevin.ray@azag.gov Harry Eth, Health Program Manager Certificate of Necessity Program ADHSIBEMS harry.eth@azdhs.gov Bryan F. Murphy, Esq. James M. Stipe, Esq. BURCH & CRACCHIOLO, P.A. Attorneys for ABC Ambulance bmurphy@bcattorneys.com j stipe@bcattorneys.com Paul J. McGoldrick, Esq. SHORALL McGOLDRICK BRINKMAN Attorneys for Rural/Metro Corporation paulmcgoldrick@smbattorneys.com Philip R. Wooten, Esq. PHILIP R. WOOTEN, P.C. Attorney for PMT Ambulance, American Ambulance, ComTrans Ambulance Service, and Canyon State Ambulance philip. wooten@azbar.org Ronna L. Fickbohm, Esq. SLOSSER STRUSE FICKBOHM, et al. Attorneys for Buckeye Valley Rural Volunteer Fire District and Fire District Sun City West rfickbohm@tucsontrusts.com Lonnie Guthrie Ajo Ambulance, Inc. uthrie@tabletoptelephone.com Charlie M. Smith American Ambulance csmith@lifestar.us Thomas A. Birch Black Canyon Fire District chief@bcvfd.org Scott Benbow Buckeye Valley Rural Volunteer Fire District markalexander@cox.net Brian Tobin Daisy Mountain Fire District brian. tobin@dmfd.org David Birchfield Gila Bend Rescue/Ambulance j carpenter@gilabendaz.org Cheryl A. Smith Life Line Ambulance Service, Inc. csmith@lifelineaz.com Ray Temple City of Phoenix Fire Department ray.c.temple@phoenix.gov Jim Roeder PMT Ambulance jroeder@pmtambulance.com John Valentine River Medical, Inc. john. valentine@emsc.net Roy Ryals Director of EMS Southwest Ambulance et al. rryals@swambulance.com PHX v - -
Paul L. Roberts, Esq. ROBERTS & CARVER Attorneys for Life Line Ambulance paulroberts@cableone.net Robert Biscoe Fire District of Sun City West Ambulance rbiscoe@scwfire.org Steve Holt Tonto Basin Fire District tbfdchief@netscape.net Paul S. Wilson Sun Lakes Fire District pwilson@slfd.org t:: c u ~ V' oa:«~~ ~Iolal«~ «CQ Lil ~..J;z~~~ Iol«Z Iolutj Q:i I-< :I: UJ I-< "S>c> a: - "'-. ~ClV">...: <n~o«g UJE-<~Zo ~ ~ O? c.!i"'''- -c UJ V"> r-,.., N r-, PHX v - -