Preview
FILED
DALLAS COUNTY
4/30/2015 3:19:31 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-12-12887
MUGDOCK TAVERN § IN THE DISTRICT COURT OF
INVESTMENTS §
and DUFFY I, LP, §
§
Plaintiffs, §
§
v. §
§
CAT SEATTLE, LLC, ASCEND §
HEALTH CORPORATION, and §
RICHARD KRESCH, Individually, § DALLAS COUNTY, TEXAS
§
Defendants and Counter- §
Plaintiffs, §
§
v. §
§
DUFFY I, LP and JAMES P. §
GRAHAM §
§
Counter-Defendants. § 134TH JUDICIAL DISTRICT
MOTION IN LIMINE
TO THE HONORABLE COURT:
Defendants and Counter-Defendants move the Court for an order in limine, restricting
opposing counsel and witnesses called on behalf of opposing parties from introducing,
mentioning, or in any way referring to certain matters, and in support of this motion, shows the
following:
I.
The matters described in Paragraph III below are not admissible in evidence for any
purpose and have no bearing on the issues or the rights of the parties in this case. Even if it can
be shown that a matter described may be relevant to a fact of consequence in this case, any
MOTION IN LIMINE Page 1
DAL 79308743v2
probative value is far outweighed by the unfair prejudice, confusion, and delay that would result
from allowing its admission into evidence.
II.
Permitting interrogation of witnesses, comments to jurors or prospective jurors, or offers
of evidence concerning any of these matters would unfairly prejudice the jury. Sustaining
objections to such questions, statements, or evidence will not prevent prejudice but will reinforce
the development of questionable and inadmissible evidence.
III.
The matters of information made the subject of this motion, and further reasons why they are
inadmissible, are as follows:
1. Undisclosed Witnesses. The testimony of any witness, expert witness or other person
purporting to have knowledge of any matter involved in this case and whose identity was
not disclosed during the discovery phase of the litigation, because such evidence is barred
under the provisions of Civil Procedure Rule 193.6. In this connection, movants asked
Plaintiffs and Counter-Defendants, by requests for disclosure, to identify all such persons.
By responses to these requests, specific names were disclosed. Movants ask the Court to
prohibit Plaintiff and Counter-Defendants from calling any other person to testify during
the trial.
2. Undisclosed or Unplead Theories.
a. Any comment, argument, testimony or evidence on any damages—e.g., reliance,
restitution, benefit-of-the-bargain, lost profits, consequential damages—other than
the $1 million liquidated damage theory disclosed in Plaintiffs’ disclosures.
MOTION IN LIMINE Page 2
DAL 79308743v2
b. Any comment, argument, testimony or evidence of any lost profits or
consequential damages as such damages are unplead and outside of the Plaintiffs’
live pleadings.
c. Any comment, argument, testimony or evidence of any damages associated with
Plaintiffs’ tort claims as such damages are neither disclosed nor pleaded in the
Plaintiffs’ live pleadings.
3. Rule 194.2(f). Any comment, argument, testimony or evidence from or regarding any
expert for whom Plaintiffs and Counter-Defendants failed to provide a proper disclosure
under Rule 194, including but not limited to documents, tangible things, reports, models
or data compilations pursuant to Texas Rule of Civil Procedure 194.2(f)(4)(A). Rule 194
specifically enumerates and requires the necessary information to afford the opposing
party a fair trial without surprise or ambush. This information is required by the Rule and
was specifically requested by Defendants' counsel by letter dated April 11, 2014
(attached hereto as Exhibit A); thus, deposition testimony from Plaintiffs’ purported
experts was not sought, and Plaintiffs and Counter-Defendants would thus be surprised
and prejudiced to be confronted by testimony from such experts.
4. Liability Insurance; Who Pays.
a. Whether or not Defendants or Counter-Plaintiffs are or are not protected by
liability insurance coverage is not admissible on the issue of the alleged breach of
duty involved in this litigation. There is no other issue in the case to which the
matter of liability insurance could possibly be relevant.
MOTION IN LIMINE Page 3
DAL 79308743v2
b. Any comment, argument, testimony or evidence regarding who pays the damages,
or whether Defendants will pay the damages.
5. Collateral Sources. Any comment, argument, testimony or evidence that Defendants
and Counter-Plaintiffs have received, is entitled to receive, will receive, or will become
entitled to receive benefits of any kind or character from a collateral source is
inadmissible. More particularly, it is not proper to offer evidence of or otherwise mention
that the party has benefited or may benefit from any insurance coverage.
6. Other Suits, Allegations, Claims, Investigations, News Reports or Settlements. Any
comment, argument, testimony or evidence of any other lawsuits, allegations, claims,
investigations, news reports, or settlements—e.g., allegations of sexual misconduct or
sexual harassment (e.g., allegations as to or against Mike Sherbun) as well as any
lawsuits, any claims or any investigations in any way related to or against Mayhill
Hospital, UBH Denton, Seattle Schick Shadel or any employees, contractors or staff at
those hospitals such as Dr. Asad Islam and Dr. Kalyan Dandala— because they are not
relevant to any issue on trial and is, thus, not admissible in evidence.
7. Patient Allegedly Harmed by Mark McElrea. Any comment, argument, testimony or
evidence that Defendants and Counter-Plaintiffs allegedly harmed a Schick Shadel
patient. This incident, which allegedly occurred as a part of patient care, is not relevant
to the claims in this dispute (i.e., the incident is not probative of Plaintiffs’ claims under
Sections 16.1 and 16.2 of the Asset Purchase Agreement). Moreover, such evidence is
inadmissible under Rule 403, as any arguable probative value would confuse the issues to
be actually decided and is substantially outweighed by the prejudicial effect of the
MOTION IN LIMINE Page 4
DAL 79308743v2
evidence. Finally, the incident constitutes inadmissible character evidence under Rule
404.
8. Subsequent Remedial Measures. Any comment, argument, testimony or evidence that
Defendants and Counter-Plaintiffs implemented or performed any post-claim or post-
lawsuit accident repairs on, or caused any changes to be made to, the Mayhill Hospital,
Schick Shadel Seattle Hospital or any programs run at those hospitals, because these
matters are not admissible pursuant to Evidence Rule 407.
9. Failure to Call Witnesses.
a. Any comment, reference or argument about the failure to call witnesses to testify
in the present action, because the same is not relevant to any issue in this case.
Moreover, it would be improper for anyone to make reference to, comment on, or
speculate about the substance of the testimony of the absent witnesses before the
jury.
b. Any speculation, comment, reference or argument on the substance or probable
testimony that an absent, unavailable or uncalled witnesses would give if called as
witnesses in this case, because the same is improper and should not be allowed in
the presence of the jury.
10. Privilege.
a. Any comment, argument, testimony or evidence that any party, person or witness
refused to disclose information based on privilege or objected and sought
protective orders in connection with attempted discovery of information, because
MOTION IN LIMINE Page 5
DAL 79308743v2
such evidence is not admissible before the jury. The refusal to disclose was based
on a legitimate claim that the matter sought was privileged information. To
prevent inadmissible information from prejudicing the jury, the matter to be
excluded by this request includes any reference to the court's ruling on the claims
of privilege and the imposition of any sanctions for refusing discovery.
b. Any attempt to elicit testimony from movants or their witnesses about
communications with movants’ in-house or outside lawyers.
11. Demands and Requests in the Jury’s Presence. Any attempt in the presence of the jury
to ask movants or their lawyers to produce documents, stipulate to any fact, or make any
agreement.
12. Corporations or Business Entities. Any comment, argument, testimony or evidence
that attempts to impose liability on or create prejudice against Defendants because they
are corporations or business entities.
13. Jury’s Award. Any comment, argument, testimony or evidence that the Court can
reduce the amount of the jury’s award.
14. Parol Evidence. Any testimony or extrinsic evidence that does or tends to vary, add to,
or contradict the terms of the agreements at issue.
15. Establishment of a Schick Shadel Service. Any comment, argument, testimony or
evidence that the agreements at issue required the establishment of a facility in Texas that
is identical to, or a duplicate or “carbon copy” (or words to that effect, “It has to be like
MOTION IN LIMINE Page 6
DAL 79308743v2
McDonalds”) of, the facility or environment of Schick Shadel Hospital in Seattle,
Washington.
16. Chemical Aversion Therapy Protocols. Any comment, argument, testimony or
evidence relating to or about alleged material deviations from any documents other than
chemical aversion therapy protocols.
17. Material Deviations.
a. Any comment, argument, testimony or evidence that the agreements at issue
require James P. Graham’s approval of any changes to the chemical aversion
therapy protocols as opposed to requiring James. P. Graham’s approval of
material deviations (except as required by regulatory or licensure compliance
purposes) from the chemical aversion therapy protocols developed by Duffy I,
L.P. and provided to Ascend Health Corporation prior to August 3, 2011.
b. Any comment, argument, testimony or evidence that Defendants had to strictly
or completely adhere to the chemical aversion therapy protocols or could not
deviate from the chemical aversion therapy protocols; the relevant standard under
the agreement at issue is that, except as required by regulatory or licensure
compliance purposes, CAT Seattle, LLC could not materially deviate from the
chemical aversion therapy protocols developed by Duffy I, L.P. and provided to
Ascend Health Corporation prior to August 3, 2011.
MOTION IN LIMINE Page 7
DAL 79308743v2
c. Any comment, argument, testimony or evidence of alleged material deviations
from chemical aversion therapy protocols that were developed after (or otherwise
were not provided to Ascend Health Corporation prior to) August 3, 2011.
d. Any comment, argument, testimony or evidence of alleged inadequacies,
deficiencies or complaints regarding issues or matters that are unrelated to the
chemical aversion therapy protocols, as such issues or matters are irrelevant to
whether CAT Seattle, LLC (except as required by regulatory or licensure
compliance purposes) materially deviated from the chemical aversion therapy
protocols developed by Duffy I, L.P. and provided to Ascend Health Corporation
prior to August 3, 2011.
18. Filing Motion in Limine; Court’s Rulings. Any evidence or suggestion that movants
filed this motion in limine or that the Court ruled in response, because these matters are
not of any concern to the jury in this litigation. Any such reference is inherently
prejudicial in that it could suggest or infer that the movant has acted improperly by
seeking to prohibit proof. Moreover, referring to the Court's exclusion of a certain matter
may be an indirect reference to the matter itself, violative of the Court's order.
IV.
Movants further request that, if opposing counsel proposes a theory of admissibility
concerning any matter set out in Paragraph III, the Court order that opposing counsel first request
a ruling from the Court outside the presence and hearing of all prospective jurors and jurors
ultimately selected in this cause.
MOTION IN LIMINE Page 8
DAL 79308743v2
WHEREFORE, Defendants and Counter-Plaintiffs request that the Court order:
1. That the matters described in Paragraph III of this motion are not admissible
evidence in this case.
2. That counsel for Plaintiffs and Counter-Defendants refrain from offering any
evidence relating to any matter described in Paragraph III of this motion in the presence of the
jury and refrain from making any reference or comment regarding such matter, directly or
indirectly, before the jury panel on voir dire and before the trial jury through examining or cross-
examining witnesses, offering documentary evidence, making closing argument, or otherwise.
3. That counsel for Plaintiffs and Counter-Defendants instruct any and all witnesses
they intend to call to refrain from any comment, mention, or reference to, directly or indirectly,
in any manner whatsoever, any of the matters set forth in this motion; and to inform such
witnesses of the consequences of violating the Court's order, including the consequence of
punishment for contempt.
Respectfully submitted,
/s/ Victor D. Vital
Victor D. Vital
Texas State Bar No. 00794798
vitalv@gtlaw.com
Nicholas A. Sarokhanian
Texas State Bar No. 24075020
sarokhaniann@gtlaw.com
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
214-665-3600 - Telephone
214-665-3601- Facsimile
ATTORNEYS FOR DEFENDANTS
AND COUNTER-PLAINTIFFS
MOTION IN LIMINE Page 9
DAL 79308743v2
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing instrument was
served on the following counsel of record pursuant to the Texas Rules of Civil Procedure by
e-mail on April 30, 2015:
Charles C. Frederiksen
CFrederiksen@gpm-law.com
J. Randall Brown, II
RBrown@gpm-law.com
Glast, Phillips & Murray, P.C.
14801 Quorum Drive, suite 500
Dallas, Texas 75254
/s/ Victor D. Vital
Victor Vital
MOTION IN LIMINE Page 10
DAL 79308743v2
EGreenberglaurig
Victor D. Vital
Vital CouftroomAdvocacy
Tel. (214) 665-3664
Fax (214) 665-3601
vitalv@gtlaw.com
April I1,2014
VA EMAIL
J. Randall Brown,II
Glast, Phillips & Murray, P.C.
14801 Quorum Drive, Suite 500
Dallas, Texas 75254
Re: MugdockTavern Investments and Duffy I, LP vs. CAT Seattle, LLC, Ascend
Health Corporation, and Richard Kresch, Individually, Cause No. DC-l2-12887
in the District Court of Dallas County, Texas, 134th Judicial District
Dear Randy:
\üe have decided to forego the depositions of Richard St. Peter, Mary Ellen Stewart, Dr. Frawley
and Linda Fortenberry. In regards to St. Peter and Stewart, we assume that we have all
responsive documents pertainìng to these witnesses, including any that will bear on the testimony
you intend to offer through them at trial. As to Frawley and Fortenberry, we kindly request that,
pursuant to Texas Rule of Civil Procedtxe 194.2(Ð(4XA), you produce (or identify by Bates
number) all documents, tangible things, reports, models, or data compilations that have been
provided to, reviewed by or for them in anticipation of their testimony. Please make sure all of
this is done/provided on or before the discovery cut-offin the scheduling order.
Finally, we assume that we'll be getting a full production of any Dr. Erick Davis documents in
yoril possession, which we've requested and have been promised by you repeatedly. Note that
we have a document request right on point.
Vital
VDV/ssj
EXHIBIT
*o
DAL 79301 571v1
g A
GRETNBERG TRAURIG, LLP.A|TORNEYS AT LAW I WWW.GTI,AWCOM
¡
2200 Ross Avenue Suite 5200¡ r 'lel 214.665.\600 :
Datlas,TX75201 Fax 214.óó5 3ó01
Preview
FILED DALLAS COUNTY 4/30/2015 3:19:31 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-12-12887 MUGDOCK TAVERN § IN THE DISTRICT COURT OF INVESTMENTS § and DUFFY I, LP, § § Plaintiffs, § § v. § § CAT SEATTLE, LLC, ASCEND § HEALTH CORPORATION, and § RICHARD KRESCH, Individually, § DALLAS COUNTY, TEXAS § Defendants and Counter- § Plaintiffs, § § v. § § DUFFY I, LP and JAMES P. § GRAHAM § § Counter-Defendants. § 134TH JUDICIAL DISTRICT MOTION IN LIMINE TO THE HONORABLE COURT: Defendants and Counter-Defendants move the Court for an order in limine, restricting opposing counsel and witnesses called on behalf of opposing parties from introducing, mentioning, or in any way referring to certain matters, and in support of this motion, shows the following: I. The matters described in Paragraph III below are not admissible in evidence for any purpose and have no bearing on the issues or the rights of the parties in this case. Even if it can be shown that a matter described may be relevant to a fact of consequence in this case, any MOTION IN LIMINE Page 1 DAL 79308743v2 probative value is far outweighed by the unfair prejudice, confusion, and delay that would result from allowing its admission into evidence. II. Permitting interrogation of witnesses, comments to jurors or prospective jurors, or offers of evidence concerning any of these matters would unfairly prejudice the jury. Sustaining objections to such questions, statements, or evidence will not prevent prejudice but will reinforce the development of questionable and inadmissible evidence. III. The matters of information made the subject of this motion, and further reasons why they are inadmissible, are as follows: 1. Undisclosed Witnesses. The testimony of any witness, expert witness or other person purporting to have knowledge of any matter involved in this case and whose identity was not disclosed during the discovery phase of the litigation, because such evidence is barred under the provisions of Civil Procedure Rule 193.6. In this connection, movants asked Plaintiffs and Counter-Defendants, by requests for disclosure, to identify all such persons. By responses to these requests, specific names were disclosed. Movants ask the Court to prohibit Plaintiff and Counter-Defendants from calling any other person to testify during the trial. 2. Undisclosed or Unplead Theories. a. Any comment, argument, testimony or evidence on any damages—e.g., reliance, restitution, benefit-of-the-bargain, lost profits, consequential damages—other than the $1 million liquidated damage theory disclosed in Plaintiffs’ disclosures. MOTION IN LIMINE Page 2 DAL 79308743v2 b. Any comment, argument, testimony or evidence of any lost profits or consequential damages as such damages are unplead and outside of the Plaintiffs’ live pleadings. c. Any comment, argument, testimony or evidence of any damages associated with Plaintiffs’ tort claims as such damages are neither disclosed nor pleaded in the Plaintiffs’ live pleadings. 3. Rule 194.2(f). Any comment, argument, testimony or evidence from or regarding any expert for whom Plaintiffs and Counter-Defendants failed to provide a proper disclosure under Rule 194, including but not limited to documents, tangible things, reports, models or data compilations pursuant to Texas Rule of Civil Procedure 194.2(f)(4)(A). Rule 194 specifically enumerates and requires the necessary information to afford the opposing party a fair trial without surprise or ambush. This information is required by the Rule and was specifically requested by Defendants' counsel by letter dated April 11, 2014 (attached hereto as Exhibit A); thus, deposition testimony from Plaintiffs’ purported experts was not sought, and Plaintiffs and Counter-Defendants would thus be surprised and prejudiced to be confronted by testimony from such experts. 4. Liability Insurance; Who Pays. a. Whether or not Defendants or Counter-Plaintiffs are or are not protected by liability insurance coverage is not admissible on the issue of the alleged breach of duty involved in this litigation. There is no other issue in the case to which the matter of liability insurance could possibly be relevant. MOTION IN LIMINE Page 3 DAL 79308743v2 b. Any comment, argument, testimony or evidence regarding who pays the damages, or whether Defendants will pay the damages. 5. Collateral Sources. Any comment, argument, testimony or evidence that Defendants and Counter-Plaintiffs have received, is entitled to receive, will receive, or will become entitled to receive benefits of any kind or character from a collateral source is inadmissible. More particularly, it is not proper to offer evidence of or otherwise mention that the party has benefited or may benefit from any insurance coverage. 6. Other Suits, Allegations, Claims, Investigations, News Reports or Settlements. Any comment, argument, testimony or evidence of any other lawsuits, allegations, claims, investigations, news reports, or settlements—e.g., allegations of sexual misconduct or sexual harassment (e.g., allegations as to or against Mike Sherbun) as well as any lawsuits, any claims or any investigations in any way related to or against Mayhill Hospital, UBH Denton, Seattle Schick Shadel or any employees, contractors or staff at those hospitals such as Dr. Asad Islam and Dr. Kalyan Dandala— because they are not relevant to any issue on trial and is, thus, not admissible in evidence. 7. Patient Allegedly Harmed by Mark McElrea. Any comment, argument, testimony or evidence that Defendants and Counter-Plaintiffs allegedly harmed a Schick Shadel patient. This incident, which allegedly occurred as a part of patient care, is not relevant to the claims in this dispute (i.e., the incident is not probative of Plaintiffs’ claims under Sections 16.1 and 16.2 of the Asset Purchase Agreement). Moreover, such evidence is inadmissible under Rule 403, as any arguable probative value would confuse the issues to be actually decided and is substantially outweighed by the prejudicial effect of the MOTION IN LIMINE Page 4 DAL 79308743v2 evidence. Finally, the incident constitutes inadmissible character evidence under Rule 404. 8. Subsequent Remedial Measures. Any comment, argument, testimony or evidence that Defendants and Counter-Plaintiffs implemented or performed any post-claim or post- lawsuit accident repairs on, or caused any changes to be made to, the Mayhill Hospital, Schick Shadel Seattle Hospital or any programs run at those hospitals, because these matters are not admissible pursuant to Evidence Rule 407. 9. Failure to Call Witnesses. a. Any comment, reference or argument about the failure to call witnesses to testify in the present action, because the same is not relevant to any issue in this case. Moreover, it would be improper for anyone to make reference to, comment on, or speculate about the substance of the testimony of the absent witnesses before the jury. b. Any speculation, comment, reference or argument on the substance or probable testimony that an absent, unavailable or uncalled witnesses would give if called as witnesses in this case, because the same is improper and should not be allowed in the presence of the jury. 10. Privilege. a. Any comment, argument, testimony or evidence that any party, person or witness refused to disclose information based on privilege or objected and sought protective orders in connection with attempted discovery of information, because MOTION IN LIMINE Page 5 DAL 79308743v2 such evidence is not admissible before the jury. The refusal to disclose was based on a legitimate claim that the matter sought was privileged information. To prevent inadmissible information from prejudicing the jury, the matter to be excluded by this request includes any reference to the court's ruling on the claims of privilege and the imposition of any sanctions for refusing discovery. b. Any attempt to elicit testimony from movants or their witnesses about communications with movants’ in-house or outside lawyers. 11. Demands and Requests in the Jury’s Presence. Any attempt in the presence of the jury to ask movants or their lawyers to produce documents, stipulate to any fact, or make any agreement. 12. Corporations or Business Entities. Any comment, argument, testimony or evidence that attempts to impose liability on or create prejudice against Defendants because they are corporations or business entities. 13. Jury’s Award. Any comment, argument, testimony or evidence that the Court can reduce the amount of the jury’s award. 14. Parol Evidence. Any testimony or extrinsic evidence that does or tends to vary, add to, or contradict the terms of the agreements at issue. 15. Establishment of a Schick Shadel Service. Any comment, argument, testimony or evidence that the agreements at issue required the establishment of a facility in Texas that is identical to, or a duplicate or “carbon copy” (or words to that effect, “It has to be like MOTION IN LIMINE Page 6 DAL 79308743v2 McDonalds”) of, the facility or environment of Schick Shadel Hospital in Seattle, Washington. 16. Chemical Aversion Therapy Protocols. Any comment, argument, testimony or evidence relating to or about alleged material deviations from any documents other than chemical aversion therapy protocols. 17. Material Deviations. a. Any comment, argument, testimony or evidence that the agreements at issue require James P. Graham’s approval of any changes to the chemical aversion therapy protocols as opposed to requiring James. P. Graham’s approval of material deviations (except as required by regulatory or licensure compliance purposes) from the chemical aversion therapy protocols developed by Duffy I, L.P. and provided to Ascend Health Corporation prior to August 3, 2011. b. Any comment, argument, testimony or evidence that Defendants had to strictly or completely adhere to the chemical aversion therapy protocols or could not deviate from the chemical aversion therapy protocols; the relevant standard under the agreement at issue is that, except as required by regulatory or licensure compliance purposes, CAT Seattle, LLC could not materially deviate from the chemical aversion therapy protocols developed by Duffy I, L.P. and provided to Ascend Health Corporation prior to August 3, 2011. MOTION IN LIMINE Page 7 DAL 79308743v2 c. Any comment, argument, testimony or evidence of alleged material deviations from chemical aversion therapy protocols that were developed after (or otherwise were not provided to Ascend Health Corporation prior to) August 3, 2011. d. Any comment, argument, testimony or evidence of alleged inadequacies, deficiencies or complaints regarding issues or matters that are unrelated to the chemical aversion therapy protocols, as such issues or matters are irrelevant to whether CAT Seattle, LLC (except as required by regulatory or licensure compliance purposes) materially deviated from the chemical aversion therapy protocols developed by Duffy I, L.P. and provided to Ascend Health Corporation prior to August 3, 2011. 18. Filing Motion in Limine; Court’s Rulings. Any evidence or suggestion that movants filed this motion in limine or that the Court ruled in response, because these matters are not of any concern to the jury in this litigation. Any such reference is inherently prejudicial in that it could suggest or infer that the movant has acted improperly by seeking to prohibit proof. Moreover, referring to the Court's exclusion of a certain matter may be an indirect reference to the matter itself, violative of the Court's order. IV. Movants further request that, if opposing counsel proposes a theory of admissibility concerning any matter set out in Paragraph III, the Court order that opposing counsel first request a ruling from the Court outside the presence and hearing of all prospective jurors and jurors ultimately selected in this cause. MOTION IN LIMINE Page 8 DAL 79308743v2 WHEREFORE, Defendants and Counter-Plaintiffs request that the Court order: 1. That the matters described in Paragraph III of this motion are not admissible evidence in this case. 2. That counsel for Plaintiffs and Counter-Defendants refrain from offering any evidence relating to any matter described in Paragraph III of this motion in the presence of the jury and refrain from making any reference or comment regarding such matter, directly or indirectly, before the jury panel on voir dire and before the trial jury through examining or cross- examining witnesses, offering documentary evidence, making closing argument, or otherwise. 3. That counsel for Plaintiffs and Counter-Defendants instruct any and all witnesses they intend to call to refrain from any comment, mention, or reference to, directly or indirectly, in any manner whatsoever, any of the matters set forth in this motion; and to inform such witnesses of the consequences of violating the Court's order, including the consequence of punishment for contempt. Respectfully submitted, /s/ Victor D. Vital Victor D. Vital Texas State Bar No. 00794798 vitalv@gtlaw.com Nicholas A. Sarokhanian Texas State Bar No. 24075020 sarokhaniann@gtlaw.com GREENBERG TRAURIG, LLP 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 214-665-3600 - Telephone 214-665-3601- Facsimile ATTORNEYS FOR DEFENDANTS AND COUNTER-PLAINTIFFS MOTION IN LIMINE Page 9 DAL 79308743v2 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing instrument was served on the following counsel of record pursuant to the Texas Rules of Civil Procedure by e-mail on April 30, 2015: Charles C. Frederiksen CFrederiksen@gpm-law.com J. Randall Brown, II RBrown@gpm-law.com Glast, Phillips & Murray, P.C. 14801 Quorum Drive, suite 500 Dallas, Texas 75254 /s/ Victor D. Vital Victor Vital MOTION IN LIMINE Page 10 DAL 79308743v2 EGreenberglaurig Victor D. Vital Vital CouftroomAdvocacy Tel. (214) 665-3664 Fax (214) 665-3601 vitalv@gtlaw.com April I1,2014 VA EMAIL J. Randall Brown,II Glast, Phillips & Murray, P.C. 14801 Quorum Drive, Suite 500 Dallas, Texas 75254 Re: MugdockTavern Investments and Duffy I, LP vs. CAT Seattle, LLC, Ascend Health Corporation, and Richard Kresch, Individually, Cause No. DC-l2-12887 in the District Court of Dallas County, Texas, 134th Judicial District Dear Randy: \üe have decided to forego the depositions of Richard St. Peter, Mary Ellen Stewart, Dr. Frawley and Linda Fortenberry. In regards to St. Peter and Stewart, we assume that we have all responsive documents pertainìng to these witnesses, including any that will bear on the testimony you intend to offer through them at trial. As to Frawley and Fortenberry, we kindly request that, pursuant to Texas Rule of Civil Procedtxe 194.2(Ð(4XA), you produce (or identify by Bates number) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by or for them in anticipation of their testimony. Please make sure all of this is done/provided on or before the discovery cut-offin the scheduling order. Finally, we assume that we'll be getting a full production of any Dr. Erick Davis documents in yoril possession, which we've requested and have been promised by you repeatedly. Note that we have a document request right on point. Vital VDV/ssj EXHIBIT *o DAL 79301 571v1 g A GRETNBERG TRAURIG, LLP.A|TORNEYS AT LAW I WWW.GTI,AWCOM ¡ 2200 Ross Avenue Suite 5200¡ r 'lel 214.665.\600 : Datlas,TX75201 Fax 214.óó5 3ó01