GREENBERG TRAURIG, LLP ATTORNEYS 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 1 NO.A-EMS-OIOI-DHS EMS No. 1 1 In the Matter of: ABC Ambulance, Applicant. SOUTHWEST INTERVENORS' MOTION IN LIMINE NUMBER [1] TO EXCLUDE THE PROPOSED "CHARACTER EVIDENCE" TESTIMONY OF ALLEN BRUNACINI AND BENTLEY BOBROW (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 [I], excluding from this hearing portions of the anticipated testimony of Mr. Alan Brunacini ("Brunacini"), and all of the anticipated testimony of Dr. Bentley Bobrow ("Bobrow"), based on the descriptions of their testimony included in Applicant's Third Supplemental List of Witnesses and PHX v
Exhibits dated August, ("Applicant's List of Witnesses"). RESPECTFULL Y SUBMITTED this liday of September,. 1 r-. >LI f-< ",,, CIl- CI:i, q -< VJo-<g "'E-<Zo "? C-'uV) o CI:i -c ;;: 1 :;:\oilal-< <-l,n ""':z 1 \oil -< Z \oilu CI:i f-< :r: C!l< >LI on r- M N By: /,,_. _ rence J. Rosen eld 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. The Proposed Character Testimony is Not Allowed A portion of Brunacini's proposed testimony and all of Bobrow's proposed testimony should be excluded as improper character evidence. summarized their testimony as follows: Specifically, Applicant has Alan Brunacini, retired Chief of the Phoenix Fire Department: "He will testify regarding the importance of customer service respecting interfacility transport and the benefits that the public will receive from competition among providers of interfacility transport, regarding his lengthy acquaintance with Dan Donahue as Phoenix firefighters, regarding Dan Donahue's qualifications as a premier educator and trainer of emergency medical personnel, and regarding the benefits that the public will receive from interfacility and convalescent transport teams that are trained to address the needs of specific subsets of the patient population needing such services." Applicant's List of Witnesses,. (Emphasis added) Bentley Bobrow, M.D., Medical Director for the Bureau of Emergency Medical Services of the ADHS: "Dr. Bobrow will be examined regarding his experience with Dan Donahue and regarding his opinions as to Dan Donahue's qualifications to serve as Chief of PHX v - -
1 c-. E-< ",", ell -.z:: cl ;;'..: ": g "'E-<Zo :: "? i:: o u t:l on o.z:: -c :; 1..: -< =:i t;l...l:z ::E 1..:Z ui.z::e-<:r: c.:l on r-- N Clinical Services for ABC Ambulance." Applicant's List of Witnesses,. According to these summaries, both witnesses will address the very same subject matter: they will be offered for the purpose of testifying about Dan Donahue's ("Donahue") reputation and qualifications. We have not been informed as to whether Applicant is offering Donahue as a fact witness or as an expert witness. In either case, based on the narrative summary of Donahue's expected testimony (Applicant's List of Witnesses, ), it appears that Applicant intends to have Donahue provide opinion testimony regarding the interfacility/convalescent transport service that Applicant has proposed. If it is Applicant's intention to qualify Donahue as an expert as to these matters, Donahue must establish, by his own testimony, that he possesses this requisite knowledge, skill, experience, training, or education. Ariz. R. Evid.. As the Arizona Court of Appeals opined in Smethers v. Campion, Ariz., 1, P.d, (Ariz. ct. App. ): As a foundational element, each... expert must establish that he or she is qualified to offer an opinion on the subject matter involved. Generally, that means that the witness must possess sufficient education, training and experience concerning a subject relevant to the action that will assist the trier of fact in resolving one of the disputed issues in the case. That showing is properly made by the putative expert testifying as to his or her bona fides, and not by testimonials from satisfied customers. Indeed, if the latter was a permissible way to credential a witness as an expert, the proceeding would rapidly devolve into a series of mini-trials, wherein every witness who "vouched" expert would be fair game for extensive cross-examination for them, with the litigation then disintegrating for the putative on what the expert worked on into a series of disputes over whether the putative expert did a good job or a poor job on those utterly unrelated jobs. This is PHX v - -
precisely why it is up to the witness offered up as an expert to establish-on his or her e-. 1 l-,-,s-a CIl - CI:: r:l II ;'<"" <Il < g E-oe<:zo '1 t:;,-,ut::]v) 1 o CI:: < e<: ;g: "" ill < -< til "...lz::e 1 < z ""ut; CI:: I- Co-'<P-. V) r-. N own-that he or she possesses the requisite expertise to offer opinion testimony. Indeed, allowing others to testify as to their evaluation of the witness' bona fides would, in essence, constitute a usurpation of the trier of fact's province to determine whether or not a witness has the requisite qualifications to so testify. See, for example, Ofstedahl v. City of Phoenix, Ariz.,, P.d, (Ariz. Ct. App. 1) ("The trial judge... has a duty to see that the expert is qualified to testify about subject matter within the realm of [his] expertise.") To the extent that Donahue is being offered as a l.f!y witness, testimony regarding his "reputation," from Brunacini or Bobrow (or anyone else, for that matter), is equally inadmissible. Indeed, what Applicant appears to be attempting here is an end-run around Ariz. R. Evid. (a), which prohibits a party from calling a witness to establish another witness' credibility, unless the adverse party has first challenged that credibility. In other words, Applicant apparently wants Brunacini and Bobrow to testify that "Donahue's a good, capable guy; we know him and trust him; and you should too, Judge." Imagine if parties could, without limitation, call witnesses to vouch for the credibility of other witnesses, even when the credibility of the testifying witness hasn't been directly assailed. Rule (a) is designed specifically to avoid this "mutual admiration society" approach to the judge's determination of whether or not a witness' testimony is credible, and how much weight, if any, that testimony should be accorded. 1 The proposed Brunacini and Bobrow "Donahue's a capable guy" testimony should thus be excluded. lone can only contemplate the chaos that would ensue if this means of establishing credibility was permitted. Witness B is called to the stand to testify that witness A is credible. The adverse party calls witness C to testify that witness B is, himself, not credible, so what he said about witness A should be discounted. The party who called witness B then calls witness D, to testify that witness C should not be believed. This is precisely why the determination of credibility is reserved to the trier of fact. PHX v - -
II. The Proposed Witness Testimony is Cumulative and Irrelevant 1 r-- "-l f-< cs",... -..:oo ": g "'E-<c.:::z:o :.i "? t::c u t::l.,., o..: c.::: :;:CO..: -e co t;l. "";z:::s::: :::: -c :z: utl f-<:r: "'o....: "-l.,., r-. 1 1 Moreover, the proposed Brunacini and Bobrow testimony regarding Donahue is cumulative. Their testimony thus should be excluded as irrelevant, immaterial, unduly repetitious, and having little probative value. Their testimony is duplicative of Donahue's own anticipated testimony regarding his purported qualifications, Ariz. R. Evid. 1,. Further, evidence may be excluded when "its probative value is substantially outweighed by a danger of... undue delay, wasting time, or needlessly presenting cumulative evidence." Ariz. R. Evid.. Applicant's repetitive presentation-through Donahue, and Brunacini, and Bobrow-will substantially and unnecessarily protract these proceedings. Accordingly, for this additional reason, Brunacini and Bobrow's testimony regarding Donahue should be excluded. III. Conclusion For the reasons set forth herein, we respectfully request that the Administrative Law Judge issue an order in limine, thereby excluding from evidence in this case all testimony from Brunacini and Bobrow (or anyone else other than Donahue) pertaining to Donahue's qualifications. RESPECTFULLY SUBMITTED this 1thday of September,. B awrence J. Rosen eld 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 - -
1 t- Ul... '-O - cr::ci "'- ;;l..:oo ",o-<g UlZo ::: C) t::: ocr::-<: \oj c:n -< <CQul....J ;Z ::E '- \oj..:z \ojc) cr::... :r: "''..: Ul r- N 1 1 ORIGIAL of the foregoing e-filed this 1t day of September,, with: Clerk, Office of Administrative Hearings 1 West Washington, Suite Phoenix, Arizona COPY of the foregoing e-mailed via the OAH portal (https://portal.azoch.com/oedf/), to: Honorable Thomas Shedden Administrative Law Judge Office of Administrative Hearings Will Humble, Director Arizona DeJartment of Health Services Jan.Escototjaazdhs.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 jstipe@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, Com Trans Ambulance Service, and Canyon State Ambulance philip. wooten@azbar.org 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 PHX v - -
Ronna L. Fickbohm, Esq. 1 John Valentine SLOSSER STRUSE FICKBOHM, et al. River Medical, Inc. Attorneys for Buckeye Valley Rural john. valentine@emsc.net Volunteer Fire District and Fire District Sun City West Roy Ryals Director of EMS rfickbohm@tucsontrusts.com Southwest Ambulance et al. rryals@swambulance.com Paul L. Roberts, Esq. ROBERTS & CARVER Paul S. Wilson Attorneys for Life Line Ambulance Sun Lakes Fire District paulroberts@cableone.net pwilson@slfd.org Robert Biscoe Fire District of Sun City West Ambulance rbiscoe@scwfire.org Steve Holt Tonto Basin Fire District tbfdchief@netscape.net 1 r-- t.ll l- ";,,, - {I')- c.:: " ;;JOoo < Vlc.:: O <>le-ozo s,; :,,: "? c u o c.:: -e C!:l <CQLilx"...J;Z:::E - z U c.::1-:r:: e,:){i')o.. t.ll II 1 1 blwwfm:! r-- PHX v - -