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Thomas, Aubuchon and Goddard

Thomas, Aubuchon and Goddard

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Published by ray stern
Andrew Thomas and Lisa Aubuchon want expert testimony of former AG Terry Goddard tossed out in a lawsuit brought by former county Supervisor Don Stapley.
Andrew Thomas and Lisa Aubuchon want expert testimony of former AG Terry Goddard tossed out in a lawsuit brought by former county Supervisor Don Stapley.

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Published by: ray stern on Aug 27, 2013
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08/28/2013

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James P. Mueller/SBN: 013066Douglas V. Drury/SBN: 011461MUELLER & DRURY, P.C.8110 E. Cactus Road, Suite 100Scottsdale, Arizona 85260Telephone: (480) 368-5511Facsimile: (480) 368-5522 jamesmueller@muellerdrury.comdougdrury@muellerdrury.comAttorney for Defendants Aubuchon and Pestalozzi
 IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ARIZONA
Gary Donahoe and Cherie Donahoe,husband and wife,Plaintiffs,vs.Sheriff Joseph Arpaio and Ava Arpaio,husband and wife;
et al.,
 Defendants
.
 
LEAD No. CV-10-02756-PHX-NVW
 CONSOLIDATED WITH: NO. CV-11-00902-PHX-NVW
DEFENDANTS LISA AUBUCHONAND PETER R. PESTALOZZI’S ANDANDREW AND ANN THOMAS’JOINT MOTION TO EXCLUDEPLAINTIFF EXPERT TERRYGODDARD
Donald T. Stapley, Jr. and KathleenStapley, husband and wife,Plaintiffs,vs.Sheriff Joseph Arpaio and Ava Arpaio,husband and wife;
et al.
 Defendants.
(ORAL ARGUMENT REQUESTED)(Assigned to the Hon. Neil V. Wake)
Defendants Lisa Aubuchon and Peter R. Pestalozzi (hereinafter “Aubuchon”)and Defendants Andrew and Ann Thomas (hereinafter “Thomas”) jointly move toexclude the testimony and report of Plaintiffs Donald and Kathleen Stapley’s expert
Case 2:10-cv-02756-NVW Document 1044 Filed 08/23/13 Page 1 of 16
 
 
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Terry Goddard dated May 10
,
2013, pursuant to LRCiv 7.2(m), FRCivP Rule26(a)(2)(A)(B) and FRE 702, 703. The report fails to meet the relevant legal standardsfor admissibility on many levels, from the fact that Goddard cannot qualify as an experton RICO, to his extensive discussion of issues excluded by the Court, to his extensive personal involvement in the underlying matters. Goddard opines extensively on thecriminal actions filed by Aubuchon and Thomas against Stapley, as well the ethics of the filings and press releases. These matters are not before this Court as to Aubuchonand Thomas. Goddard’s extensive personal involvement in the underlying matters inthis action, as well as with Thomas, calls into question his independence, methodologyand ultimately prevents him from testifying as an expert witness herein. This Motionis supported by the attached Memorandum of Points and Authorities.RESPECTFULLY SUBMITTED this 23
rd 
day of August, 2013.
MUELLER
 
&
 
DRURY
/s Douglas V. DruryDouglas V. Drury, Esq.
BROENING
O
BERG
W
OODS
&
 
W
ILSON
,
 
P.C.
s/ Sarah L. BarnesSarah L. Barnes, Esq.
MEMORANDUM OF POINTS AND AUTHORITIES
 
I.
 
PROCEDURAL STATUS
In response to Aubuchon’s and Thomas’ previous Motions to Dismiss, the Courtdismissed Counts 2, 5 and 8 of Stapley’s Second Amended Complaint to the extent theyrelied on the criminal charges filed by Aubuchon and Thomas in Stapley I and StapleyII. The Court also dismissed Counts 11 and 12 in their entirety. The Court denied Aubuchon’s and Thomas’ Motions as to Count’s 1, 7 and 8 to the extent they pertained to Thomas’ and Aubuchon’s participation in the filing of the RICO action. Aubuchonand Thomas jointly took an interlocutory appeal on those counts to the Ninth Circuit,
Case 2:10-cv-02756-NVW Document 1044 Filed 08/23/13 Page 2 of 16
 
 
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which remains pending.
1
The Counts presently before this Court pertaining to bothAubuchon and Thomas are Counts 2 and 5 (malicious prosecution for Stapley I and Stapley II criminal charges, insofar as they pertain to investigations); Count 7(Intentional Infliction of Emotional Distress);
 
Count 8 (wrongful arrest and illegalsearch to the extent the allegations do not relate to the criminal charges or the RICOappeal), Count 10, (Section 1983 wrongful search), and Count 4 (wrongful arrest)against Aubuchon.
II.
 
LEGAL STANDARD
 Daubert v. Merrell Dow Pharmaceuticals, Inc
., 509 U.S. 579 (1993) articulated two tests for admissibility of expert witness testimony; the testimony must be relevantand it must be “reliable.” “Rule 702 further requires that the evidence or testimonyassist the trier of fact to understand the evidence or to determine a fact in issue. Thiscondition goes primarily to relevance. Presumably, this relaxation of the usualrequirement of first-hand knowledge--a rule which represents a most pervasivemanifestation of the common law insistence upon the most reliable sources of information, (citation omitted) -- is premised on an assumption that the expert's opinionwill have a reliable basis in the knowledge and experience of his discipline.”
 Id 
. at 592.
III.
 
GODDARD’S REPORT DOES NOT CONTAIN RELEVANT,ADMISSIBLE EVIDENCE AS TO AUBUCHON AND THOMAS.
This Court’s Order of April 9, 2012 made clear that Aubuchon and Thomas haveabsolute immunity from any claims arising from their filing criminal charges in StapleyI & II. “To the extent Plaintiffs, particularly Stapley, has squarely grounded any claimon prior criminal prosecution by Thomas and Aubuchon, those claims can and must bedismissed at this time.” (April 9, 2012 Order at p. 42, lines 14-16).
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The appellate panel affirmed the trial court in an opinion filed August 16, 2013. Jurisdiction has notyet returned to the District Court. If and when jurisdiction returns to this Court, Goddard is still notqualified to opine on this issue for the reasons set forth in Sections III & IV below.
Case 2:10-cv-02756-NVW Document 1044 Filed 08/23/13 Page 3 of 16

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