john t. masterson, bar #007447 eileen dennis gilbride, bar ...jones, skelton & hochuli, p.l.c....

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8074982.1

John T. Masterson, Bar #007447 Eileen Dennis GilBride, Bar #009220 Brandi C. Blair, Bar #025944 Elizabeth A. Gilbert, Bar #016498 JONES, SKELTON & HOCHULI, P.L.C. 40 North Central Avenue, Suite 2700 Phoenix, Arizona 85004 Telephone: (602) 263-1700 Fax: (602) 200-7846 [email protected] [email protected] [email protected] [email protected]

Attorneys for Defendants EXC, Inc. dba Express Charters and D.I.A Express, Inc.; Conlon Garage, Inc., Go Ahead Vacations, Inc., Russell J. Conlon and National Interstate Insurance Company

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Jamien Rae Jensen, individually and as parent and next friend of D.J.J., Chavis Johnson, as Personal Representative of the Wrongful Death Estate of Butch Corey Johnson,

Plaintiffs,

v.

EXC, Inc., a Nevada corporation, d/b/a Express Charters and D.I.A. Express, Inc., Conlon Garage, Inc., a Colorado corporation, Go Ahead Vacations, Inc., a Massachusetts corporation, Russell J. Conlon, individually,

Defendants.

NO. 3:15-cv-08019-SPL

DEFENDANTS’ MEMORANDUM OF LAW

Defendants offer this memorandum of law to aid the court in anticipation of

Defendants’ objection at trial to the introduction of evidence and testimony pertaining to

Jamien Jensen’s miscarriage on the grounds that it is speculative, lacks foundation, and is

prohibited by the law.

Case 3:15-cv-08019-SPL Document 181 Filed 12/09/19 of 15

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8074982.1 2

On October 31, 2004, approximately one month after the subject accident,

Ms. Jensen presented to the emergency room with abdominal pain and vaginal bleeding.

See medical record, attached hereto as Exhibit 1. Based on Plaintiff’s self-reported

history, treating doctors concluded she was possibly ten weeks pregnant, but no fetal parts

were discovered, and doctors were suspicious that the pregnancy was a hydatidiform

mole. Id. Importantly, no doctor concluded that the Plaintiff’s alleged miscarriage was

caused by the accident that occurred a month earlier, nor did any doctor conclude that the

fetus was viable, or even that a fetus existed. Moreover, Plaintiff Jamien Jensen testified

that no doctor has ever linked the accident and her alleged miscarriage. See deposition

transcript for deposition of Jamien Jensen, attached as Exhibit B, at 35:18-23. Plaintiff has

not disclosed any medical expert to opine whether the alleged miscarriage was caused by

the earlier automobile accident.

The loss of a ten week old fetus is not compensable under the law. See

Summerfield v. Superior Court, 144 Ariz. 467, 477, 698 P.2d 712, 722 (1985) (“We

believe that the common law now recognizes that it is the ability of the fetus to sustain life

independently of the mother's body that should determine when tort law should recognize

it as a “person” whose loss is compensable to the survivors.”); see also Jeter v. Mayo

Clinic Arizona, 211 Ariz. 386, 121 P.3d 1256 (App. 2005). Notwithstanding this,

Plaintiffs must also establish through proper medical evidence that the underlying

accident caused their alleged injury. Specifically, when a plaintiff claims that a

defendant’s conduct caused her/him physical injury or illness, “[i]t is not sufficient . . .

that plaintiff show a certain injury might have been caused by the negligence of

defendant.” Butler v. Wong, 117 Ariz, 395, 396, 573 P.2d 86, 87 (App. 1977) (citing

Western Truck Lines, Ltd. v. Berry, 53 Ariz. 216, 87 P.2d 484 (1939)) (emphasis added);

see also Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007) (discussing Plaintiff’s duty to

provide a causal connection between the defendant’s conduct and the resulting injury).1

1 Federal Courts sitting in diversity apply the law of the forum state. Enron

Oil Trading & Transp. Co. v. Walbrook Ins. Co. Ltd., 132 F.3d 526, 528 (9th Cir. 1997).


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8074982.1 3

Rather, “[i]t is necessary to establish that the injuries have been so caused.” Id.

Furthermore, “[t]o establish the causal connection between an accident and injury, a sine

qua non of liability, medical testimony as to the possibility of such causal connection,

without more, is insufficient.” Id. (citing Coca-Cola Company of Tucson v. Fitzgerald, 3

Ariz. App. 303, 306, 413 P.2d 869, 872 (1966)).

Plaintiffs have disclosed no expert to provide the requisite medical causation

testimony to support Ms. Jensen’s claims that this accident caused her to have a

miscarriage. Moreover, this Court has ruled that Plaintiffs may not call any treating

physician (See Court Order granting in part and denying in part Defendants’ Motion in

Limine No. 7 at Doc. 128), nor have Plaintiffs listed any witness to lay foundation for the

relevant medical records. Based on the foregoing, Defendants intend to object at trial to

any testimony regarding Ms. Jensen’s alleged miscarriage.

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8074982.1 4

DATED this 9th

day of December 2019.

JONES, SKELTON & HOCHULI, P.L.C.

By /s/Brandi C. Blair John T. Masterson Eileen Dennis GilBride Brandi C. Blair Elizabeth A. Gilbert 40 North Central Avenue, Suite 2700 Phoenix, Arizona 85004 Attorneys for Defendants EXC, Inc. dba Express Charters and D.I.A Express, Inc.; Conlon Garage, Inc., Go Ahead Vacations, Inc., Russell J. Conlon and National Interstate Insurance Company

CERTIFICATE OF SERVICE

I hereby certify that on this 9th

day of December 2019, I caused the

foregoing document to be filed electronically with the Clerk of Court through the

CM/ECF System for filing; and served on counsel of record via the Court’s CM/ECF

system.

/s/Gladys Negron


EXHIBIT 1


NATLINT 003200

MARICOPA INTEGRATED HEALTH SYSTEM

AFFIDAVIT OF RECORDS CUSTODIAN CERTIFYING RECORDS

STATE OF ARIZONA

COUNTY OF MARICOPA

RE: JAMIEN JENSEN Date of Birth:

I, CATERINA WHITUS being the duly authorized Custodian of Records at:

Certify:

Maricopa Integrated Health System

2601 East Roosevelt Street

Phoenix, Arizona 85008

1. That as of the date of this declaration, the attached documents are a true and completed

copy of all records of the above mentioned individual which were prepared and

maintained by the facility in the usual course of business.

2. There are a total number of 42 pages.

Integrated Health iite~

DATE SIGNED i 12 70/9-, . SUBSCRIBED AND SWORN TO BEFORE ME THIS \.q-MY COMMISSION EXPIRES: 07/27/17

ROSETIA SMITH Notary Public - State of Arizona

MARICOPA COUNTY My Commission Expires

July 27, 2017

Rosetta Smith

NOTARY PUBLIC


NATLINT 003218

, · · · .· . · . · •· MARICOPA INTEGRATED HEALTH SYSTf~M

Maricopa Medical Center - Comprehensive Healthcare Center - Family Health Centers (606) 267-5411 Emerge;1cy Medi.cine

PATIENT: JENSEN, JAMIEN REFERRAL SOURCE: DATE OF SERVICE: 10/31/2004

SEX: F

TIME OF FIRST ENCOUNTER: 08:00

EMERGENCY DEPARTMENT ATTENDING NOTE

t·1?.#: AC:C'l'if: flOB:

Fl'1ERGENCY DEPARTMENT NOTES

I interviewed and examined this patient, and discussed care with the resident, Dr. Loewen.

HISTORY OF PRESENT ILLNESS This is a ,20-year-old woma·n who is sent to us from Kayenta, Arizona, seen there at the ~ealth~are center with vaginal bleeding and clots. She was ten weeks pregnant by history. and was initially hypertensive there in the emergency department. She had IV fluid infused. Ultrasound there was suspicious for hydatidiform mole. She was ,sent down here after discussing with us for higher level of OB/GYN care.

PHYSICAL EXAMINATION On examination, she has good vital signs. Blood pressure 104/52, pulse 92, respiratory rate 16, temperature 37.1 orally, oximetry is 100%• on room air. She is alert and oriented, cooperative. HEENT unremarkable. Heart examinatidn is benign. Abdominal examination reveals mild lower abdominal tenderness without guarding or rebound.

HCG was in the 5,000 range. Ultrasound showed either a low-lying placenta or clot in the lower uterine segment, impacted into the proximal cervical canal. It was noted she had some bleeding Hhen she was in ultrasound after the vaginal probe examination.

I r:e-exdrnined her at 09:00 and did a bimanual examination in bed at that time. There was good palm full of fairly fresh but dark clot in the vagina. There was also what appeared to be products of conception. This looked more like placental tissu.e Hith clot on it than anything else. No actual fetal parts identified. There was no bright red blood th~t I saw. The external os felt open but the internal os felt closed. I could not get a good feel of the uterine size.

She Has seen by OB/GYN and it is felt that she has a completed abortion. She is going to be discharged back with Kayenta to be folloHed by the OB/GYN service there. Her vital signs are good and she is stable at this point.

CONDITION ON DISCHARGE Stabl<:;=.

LOG #: 016

JENSEN, JAMIEN, Chartmaxx Copy- pgreensm z-Emergency Dept Dictation Notes - Page 1/2 Job 22460 (04/14/2017 09:03:07)- Page 10 Doc# 4


NATLINT 003219

MARj:COPA INTEGRATED HEALTH SY.c:'J'EM Maricop-a· Medical· C~nter - Comprehensive Heal t:hcare Center - Family' Health Centers

(606) 267-5411 Emecgency Medicine

PATIENT: JENSEN, JAMIEN REFERRAL SOURCE: DATE .OF SERVICE: 10/31/2004

SEX: F

DO: 10/31/2004 02:01:43 PM DT: 11/01/2004 06:31:27 PM JOB: 736453

LOG #: 016

Signed: RICHARD A SELIGSON, MD 11/02/2004 06:53 MST

MLS: 90038

Mk1i: ACCT#: DOB:

EMERGENCY DEPARTMENT NOTES RICHARD A SELIGSON, MD



NATLINT 003220

MARICOPA INTEGRATED HEAL'fH SY2Tl':M Maricopa Medical Center - Comprehensive Hea1t:hcare Center - Fe1mily Health Centers

(606) 267-5411 Ewergency Medicine


SEX: F

TIME SEEN: 07:10

HISTORICAL SOURCE Patient and chart.

CHIEF COMPLAINT "Vaginal bleeding and pregnancy complications."

HISTORY OF PRESENT ILLNESS

l'1R # : ACC'r#: DOB:

Et'lERGENCY DEPARTMENT NOTES

This is a 20-year-old female, she is a G2, Pl, AB 0, ten weeks pregnant by ultrasound yesterday at Kayent Health Center. She went to the emergency department there after about five days of vaginal bleeding. She is going through about three pads a day for three days and then about five pads per day. There, she h~d a stable hemoglobin and hematocrit and showed about a ten week fetus. Ultrasound report was not sent, and I do not know if the fetus was viable. There is a question of molar pregnancy, but I do not know on what basis this was, as it was not on the chart that was sent. Previous to going to the emergency department, she had some dizziness and lightheadedness, but never any syncope. She bad some lower cramping in her abdomen about the same time she started having the bleeding.

PA~T MEDICAL HISTORY Denies. The patient was in a severe auto accident about one month ago, she spent a 0eek in the hospital, she was intubated, had closed head injury and right radial fracture. Her husband was killed in ~he car accident. She said she was about four weeks pregnant at that time. She denies any abdominal injuries from the accident that she was told about.

CURRENT MEDICATIONS Denies.

SOCIAL HISTORY No smoking, alcohol or drugs.

REVIEW OF SYSTEMS Constitutional: No fever or chills. HEENT: No sore throat. No vision changes. Cardiac: No chest pain. Respiratory: No shortness of GI; Lower quadrant abdominal GU! N~ dysuria or hematuria.

LOG #:

breath. pain, no nausea. Positive vaginal bleeding.



NATLINT 003221

MARICOPA INTEGRATED HEALTH S~'STE~1

Mai:·icopa Medical Center - Comprehensive Healthcare Center - Family Health Centers (606) 267-5411 Emergency Medicine


SEX: F

MUsculoskeletal: No extrem~ty or back pain. Neurological: No headache:

ALLERGIES No known drug allergies.

PHYSICAL EXAMINATION

MR#: ACCT#: DOB:

EMERGENCY DEPARTMENT NOTES

Tria~e vital signs: Blood pressure 105/44, pulse 90, oxygen saturation 100% on room air, respiratory rate 16 breaths per minute. Constitutional: The patient in no acute distress, nontoxic the entire emergency department course, was pleasant. ~EENT: Anicteric. Pupils equal, round, reactive to light and accommodation. Extraocular movements are intact. No conjunctival injection .. Lower lid mucosa was not pale, had good color. Oropharynx is moist, clear, no evidence of infection. Neck: Supple. Respiratory: Clear to auscultation bilaterally. Cardiovascular:' ReguJ.ar rate and rhythm. Normal S1, S2. Strong DP, femoral and racial pulses bilaterally. J\bdomen; Lm-;er quadrants had some mild tenderness to palpation. No peri t:oneal signs. The rest: of her abdomen was soft:, compressible and nontender. Skin: Warm and dry. Genitourinary: Per Dr. Seligson's examination, :for which I was not: there, he said the external os was slightly open, internal os was closed. There was some clot: coming :from the external os and some tissue passed which may have been products of conception mixed with blood clot. She has no cervical motion tenderness. Skin: Warm and dry. Lymphatic: No cervical lymphadenopathy. Neurological: Nonfocal. Psychiatric: Alert and oriented times three. Cogn:itively appropriate.

CRITICAL THINKING/EMERGENCY DEPARTMENT COURSE This :is a 20-year-old :female with vaginal bleeding and history of pregnancy. She bad a stable hemoglobin and hematocrit at: an outside facility, an outside facility saying there was potential for a molar pregnancy, and also at the outside facility she had a systolic blood pressure in the 80s and she was flown by fixed wirig here. Vital signs have been stable. She has had two liters of fluid. Initially, differential diagnoses were threatened AB versus complete AB versus rule out: ectopic pregnancy. She had a Foley catheter placed and went to pelvic ultrasound. The ultrasound showed a normal uterus, no free fluid in the abdorrten, normal ovaries. She had a mass at the lower uterine segment that may have been some blood versus products of conception, it: was not clear on ultrasound. Also, potential for molar pregnancy is a low possibility, no vasculature going to this

'LOG #:



NATLINT 003222

MARICOPA INTEGRATED HEAL'l'H SYST~~M

Maricopa Medical Center - Comprehensive Healthcare Center - Family Health Centers (606) 267-5411 Emergency Medicine

PATIENT: JENSEN, JAMIEN REFERRAL SOURCE: DATE OF SERVICE: 10/31/2004 . SEX: F

MR # : ACCT#: DOB:

EMERGENCY DEPARTMENT NOTES area. Beta HCG was 57/30, hemoglobin and hematocrit 11.6 and 33.1. Urinalysis showed a white blood cell count of 18, ketones 15. On repeat abdominal examination, she had no right lower quadrant tenderness to percussion, palpation or rebound tenderness. There were no peritoneal signs. OB/GYN consult was obtained which said that it was thought this was likely a complete AB, however, the patient should be seen in the clinic in Kayent for follow-up beta HCG. The possible products of conception were sent to pathology. The patient was given Macrobid 100 mg b.i.d. for three days for possible urinary tract infection. She should return to the emergency department there for any further bleeding, abdominal pain or other concerns. The patient was educated that this patient was lost.

DIAGNOSES 1. Complete AB. 2. Acute abdominal pain.

DD: 10/31/2004 01:52:04 PM DT: 11/01/2004 04:57:52 PM JOB: 736452

LOG #:

Signed: RICHARD A SELIGSON, MD 11/15/2004 14:38 MST

Signed: JOHN LOEWEN, MD 11/10/200415:11 MST

,JOHN LOEWEN, MD

RICHARD A SELIGSON, MD

MLS: 90038

JENSEN, JAMIEN, , Chartmaxx Copy- pgreensm z-Emergency Dept Dictation Notes - Page 3/3 ·Job 22460 (04/14/2017 09:03:07)- Page 14 Doc# 5


NATLINT 003233

Ml\RICOPZ\ MEDICAL CENTER 2601 E. ROOSEVELT - PH!)~NI.X, AR.lZOH/\ 85008

D E P A R T M E N T' G F P A 'i· !; 0 L 0 G Y

ACCESSION #: RECEIVED DATE: 01NOV04 COLLECTED DATE: 310CT04 BIRTHDATE: SEX: FEMALE LOCATION: EMERGENCY DEPAR'l'MENT

PREOPERATIVE DIAGNOSIS: Pregnant, vaginal bleeding

TISSUE FOE EXAMINATION: Vaginal discharge products

GROSS DESCRIPTION:

ANATOMIC PATHOLOGY

PID: (0000)00350-47-31-5 Nl\MF,: JENSEN I JAM IEN AT"l'ENDING: SELIGSON, RICHARD A. RESIDENT: SELIGSON, RICHARD A. ACCOUNT NBR:

SUEGJCAL PATHOLOGY

Received in formalin and labeled "vaginal discharge products", it consists of one irregular gray-tan to red·-brown soft tissue fragment measuring 6. 0 x 3. 0 x 2.5 em. The specimen is breadloafed. No obvious placental tissue is identified. Representative sections are submitted in t.hree cassettes.

Dictated by: PNP/SMM

MICEOSCOPIC DESCEIPTION: Microscopic examination performed.

' DIAGNOS r S: UTERINE CONTENTS: PEODUCTS OF CONC~PTION INCLUDING IMMATUEE CHOEIONIC VILLI

CODE I

CPT·-4/ICD·-9: 88305-26; 634.9

Dictated by: ,JOHN !VJ. BROWN, ~1. D. Reviewed and verified by: JOHN M. BROWN, M.D.

SMM 02NOV2004 12:26 (ELECTRONIC SIGNATURE)

DAN W. HOBOHM, M.D., CHAIRMAN END OF REPOET PAGE 1

JENSEN, JAMIEN, Chartmaxx Copy- pgreensm Pathology Report - Page.1/1. Job 22460 (04/14/2017 09:03:07)- Page 22 Doc# 10


EXHIBIT 2


UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Jamien Rae Jensen, individuallyand as parent and next friend ofD.J. and as PersonalRepresentative of the WrongfulDeath Estate of unborn childC.J., deceased, Chavis Johnson,individual and as PersonalRepresentative of the WrongfulDeath Estate of Butch C.J., andMargaret Johnson, Frank Johnson,Francesca Johnson, JustinJohnson, Holly Johnson, DominiqueJohnson, Raymond Jensen, Sr.,Louise R. Jensen, Katrina Jensen,Raymond Jensen, Jr., Ryan Jensen,and Justin Jensen, individually,

Plaintiffs,

vs.

EXC, Inc., a Nevada corporation,d/b/a Express Charters and D.I.A.Express, Inc., Conlon Garage,Inc., a Colorado corporation,Go Ahead Vacations, Inc., aMassachusetts corporation,Russell J. Conlon, individually,and national Interstate InsuranceCompany,

Defendants.

)))))))))))))))))))))))))))))))

No.3:15-cv-08019-SPL

VIDEOTAPED DEPOSITION OF JAMIEN JENSEN

July 17, 20179:02 a.m.

Phoenix, Arizona

Prepared by:Marianne S. Burton, RPRArizona CertifiedReporter No. 50519

BB&S Reporting LLC2415 East Camelback RoadSuite 700Phoenix, Arizona 85016

[email protected]


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09:38:24

09:38:29

09:38:41

09:39:23

09:39:39

VIDEOTAPED DEPOSITION OF JAMIEN JENSEN - 7/17/17

BB&S REPORTING LLC - [email protected]

35

A. Well, in high school, the way a lot of -- I did

a lot of weight training, you know, push-ups and stuff.

Right now, growing up, I figured that, hey, I can do some

push-ups. But I'm too scared because my left arm might

break.

Q. Okay.

A. I just have that phobia like it's going to

break again.

Q. Okay.

A. So other than that, I try to walk. You know, I

try to run.

Q. So you do get some exercise just not the

weight-training kind of exercise.

A. Yeah.

Q. Okay. Are you on any medication for any

physical ailments?

A. No.

Q. All right. You testified at your deposition in

2007 that no doctor, at least at that point, had ever

told you that your miscarriage was caused by the

accident.

Has any doctor since then told you that?

A. Not that I recall.

Q. Okay. Were your pregnancies with your

daughters Hayden and Asia, were they normal pregnancies?


john t. masterson, bar #007447 eileen dennis gilbride, bar ...jones, skelton & hochuli, p.l.c....

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