MDY Industries, LLC v. Blizzard Entertainment, Inc. et al

Filing 172

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MDY Industries, LLC v. Blizzard Entertainment, Inc. et al Doc. 172 1 2 3 4 5 6 HARALSON, MILLER, PITT, FELDMAN & McANALLY, P.L.C. Attorneys at Law One South Church Avenue, Suite 900 Tucson, Arizona 85701-1620 (520) 792-3836 Stanley G. Feldman, State Bar #838 Thomas G. Cotter, State Bar #9059 Melissa L. English, State Bar #023196 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 304\67243.001\2005122915110300 JARROD and MELISSA MORELAND, husband and wife, Cause No. 4:05-CV-480-DCB Plaintiffs, -vsRONALD J. BARRETTE, D.O., and JANE DOE BARRETTE, husband and wife; SPECTRUM HEALTHCARE NATIONWIDE, INC., a Delaware corporation; COMPHEALTH ASSOCIATES, INC., a Utah corporation; Defendants. PLAINTIFFS' MOTION TO COMPEL DEFENDANT COMPHEALTH, INC. TO PRODUCE DEFENDANT BARRETTE'S COMPHEALTH APPLICATION MATERIALS Hon. David Bury INTRODUCTION In its 4/25/07 Order, the Court granted Plaintiffs leave to respond to two issues raised by Defendants in their respective motions to reconsider the Court's 3/26/07 Order, specifically: (1) whether Dr. Barrette was entitled to immunity under the Gonzalez Act, 10 U.S.C. 1089, et. seq., and (2) whether the "lent" or "borrowed" servant doctrine immunized Defendant(s) CompHealth and/or Spectrum from vicarious liability for Dr. Barrette's negligence. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants' motions for reconsideration should be denied because: Dr. Barrette was not acting within the scope of his military service or pursuant to a "personal services contract" with the government; therefore, he is not entitled to immunity under the Gonzalez Act; and CompHealth and Spectrum retained the right to control Dr. Barrette's provision of medical services at Bliss Army Health Center, justifying vicarious liability under a theory of either respondeat superior or the borrowed/lent servant doctrine. The fact that the government, Army and/or Bliss Army Health Center staff may also have had the right to control Dr. Barrette does not extinguish CompHealth's and Spectrum's liability for Dr. Barrette's negligence. The Court's 3/26/07 Order should be affirmed and this action set for trial. 304\67243.001\2005122915110300 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 304\67243.001\2005122915110300 ARGUMENT I. DR. BARRETTE IS NOT ENTITLED TO IMMUNITY UNDER THE GONZALEZ ACT. All Defendants seek reconsideration claiming that Dr. Barrette is entitled to immunity under the Gonzalez Act, 10 U.S.C. 1089 et. seq. The Gonzalez Act provides immunity to two classes of people: (1) military physicians acting within the scope of their employment and (2) physicians providing medical services "under a personal services contract entered into under section 1091 of this title." 10 U.S.C. 1089(a). A 1091 personal services contract is a contract between the government and an individual medical provider that "by its express terms or as administered, makes the contractor personnel appear, in effect, to be government employees." 10 U.S.C. 1091(a); 37 C.F.R. 107.3(a). The Gonzalez Act does not apply to Dr. Barrette. As the Court has already determined, and as Dr. Barrette admits, he was not acting within the scope of his military service when he was providing medical services at Bliss Army Health Center. Therefore, he does not qualify in the first category of individuals immunized under the Act. Nor was Dr. Barrette acting pursuant to a 1091 personal services contract personal services contract. As a threshold issue, the government is not a party to any of the contracts at issue. This precludes a finding that any of the contracts are personal services contracts. In addition, none of the contracts create an employment relationship between Dr. Barrette and the government. In fact, all of the contracts by their terms state that Dr. Barrette will be providing services as an independent contractor. Dckt. #99, Ex. A, at 1; Ex. F, 4; Dckt. #101, Ex A at 7. The contract between CompHealth and Spectrum 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 is explicit on this point, stating that the physicians provided pursuant to the contract are "not employees of ... MTF [military treatment facility] for any purpose." Dckt. #99, Ex. F, 4. These contract terms are consistent with Spectrum's practice of requiring its medical providers to identify themselves as Spectrum employees on medical records and other documents. See Dckt. #99, Ex. J. (Maj. Moreland's medical records identifying Dr. Barrette as a Spectrum employee). Without creating an employment relationship with the government, none of the contracts are 1091 personal services contracts. The contracts lack other characteristics required of 1091 personal services contracts. Regulations require that a 1091 personal services contract contain language specifically identifying the contract as a personal services contract and acknowledging "the individual as a personal services contractor whose performance is subject to supervision and direction by designated officials of the Department of Defense." 37 C.F.R. 107.5(a). None of the contracts at issue in this case include any of the required language or identify either the contract as a 1091 personal services contract or the personnel provided by the contract as personal services contractors. The lack of such language is a telltale sign that these contracts are not 1091 personal services contracts. In addition, the contracts contain provisions that are inconsistent with 1091 personal services contracts. A physician practicing pursuant to a 1091 personal services contract does not have to maintain professional liability insurance for its acts and omissions within the scope of the contract. See "Are Contractor Health Care Providers `Employees of the Government'?,"Army Lawyer, 26 (2005) (describing Department of Defense policy exempting personal service contract physicians from carrying malpractice insurance). In contrast to this policy, all of the contracts at issue require the respective parties to maintain professional liability insurance for themselves 304\67243.001\2005122915110300 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 and any staff provided pursuant to the agreements, including Dr. Barrette. Dckt. # 99, Ex. A, at 1-2; Ex. F, 3.2; Dckt. #101, Ex. A Sec VII at 8. The requirement for professional liability insurance is inconsistent with both the terms and purpose of the Gonzalez Act, and is further evidence that these contracts are not, and the parties did not intend them to be, 1091 personal services contracts. Moreover, under a 1091 personal services contract, the Department of Defense sets the contract physicians rate of pay. 37 C.F.R. 107, Encl. 1. In this case, Dr. Barrette and CompHealth admit that CompHealth both set the rate of pay and in fact paid Dr. Barrette. Dckt. #99, Ex. B; Dckt. #100, Ex. A, 38:25-43:4. Dr. Barrette's CompHealth contract is further evidence that CompHealth set Dr. Barrette's rate of pay. Dckt. #99, Ex. A at 1. The fact that CompHealth set Dr. Barrette's rate of pay is further evidence that Dr. Barrette was not functioning under a 1091 personal services contracts. Defendants carry the burden of proving Dr. Barrette's immunity under the Gonzalez Act. The chain of contracts before the Court originates with a contract between Tri-West and the government. In order to establish Dr. Barrette's immunity, Defendants would have to prove that this contract was a 1091 personal services contract. Despite having months and months to obtain such evidence, they have failed to do so, presumably because that contract is not a 1091 personal services contract. See "Are Contractor Health Care Providers `Employees of the Government'?", Army Lawyer, at n.1 (TRICARE partnership providers are not typically under 1091 personal services contract). Without such evidence, there is no basis to conclude that any of the contracts at issue are personal services contracts, or that Dr. Barrette is entitled to immunity under the Gonzalez Act. Defendants' motions on this basis should be denied, and the 304\67243.001\2005122915110300 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Court's 3/26/07 Order upheld. II. SPECTRUM AND COMPHEALTH ARE VICARIOUSLY LIABLE FOR DR. BARRETTE'S NEGLIGENCE UNDER A THEORY OF RESPONDEAT SUPERIOR OR THE BORROWED/LENT SERVANT DOCTRINE. CompHealth and Spectrum seek reconsideration of their vicarious liability on two related basis. First, CompHealth claims that the facts do not support finding that it was Dr. Barrette's master for the purposes of vicarious liability. In addition, both CompHealth and Spectrum claim that under the "borrowed" or "lent" servant doctrine the U.S. Army is solely liable for Dr. Barrette negligence. Both of these positions rest on Spectrum's and CompHealth's assertions that they did not exercise the requisite amount of control over Dr. Barrette to justify vicarious liability. Defendants' positions are not consistent with either the facts or the law. A. BOTH COMPHEALTH AND SPECTRUM HAD THE RIGHT TO CONTROL DR. BARRETTE PROVISION OF MEDICAL SERVICES. For the purposes of vicarious liability under either respondeat superior or the borrowed servant doctrine the dispositive issue is "control or the right to control" the employee's performance. Ruelas v. Staff Builders Personnel Services, Inc., 199 Ariz. 344, 346, 18 P.3d 138, 140 (App. 2001) citing McDaniel v. Troy Design Services Co., 186 Ariz. 552, 553, 925 P.2d 693, 694 (1996). A party with the right to control an employee's performance may not escape liability by failing to exercise the control they retained. Id. The multiple contracts before the Court establish that both CompHealth and Spectrum retained the right to control Dr. Barrette's performance. Under its 304\67243.001\2005122915110300 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 contract with Dr. Barrette, CompHealth required Dr. Barrette to "observe written standards for the medical profession and specialty, the medical staff by-laws and rules of our clients, and any state and federal requirements". Dckt. #99, Ex. A, at 3. This contract provision provides CompHealth with broad authority to control to the manner in which Dr. Barrette practiced medicine while on assignment. A simple hypothetical demonstrates the control this contract provision provided CompHealth. Say that Dr. Barrette planned to perform the type of partial birth abortion that is barred under federal law. This provision would provide CompHealth with the right to either prohibit Dr. Barrette from performing the procedure, or remove Dr. Barrette from his position to prevent him from doing so. The same result would obtain if Dr. Barrette planned to perform a medical procedure in a manner that fell outside the written standards of the profession, such as performing Capt. Moreland's surgery without using anesthesia. Relying on Dr. Barrette's contract, CompHealth would be entitled to require Dr. Barrette to use anesthesia, prohibit him from performing the surgical procedure, or remove him from his position at Bliss. This is the type of control that justifies vicarious liability. CompHealth claims that it could not have exercised any control over Dr. Barrette because Dr. Barrette's CompHealth contract required him to "exercise independent professional judgment." As pointed out by Spectrum, however, the exercise of independent professional judgment will not in and of itself preclude an agency relationship for purposes of vicarious liability. Spectrum Motion at 6 citing Lindquist v. Scott Radiological Group, Inc., 168 S.W.3d 635, 656 (Mo. Ct. App. 2005) and Hohenleitner v. Quorum Health Res. 758 N.E.2d 616, 623 (Mass. 2001). Here the fact that CompHealth required Dr. Barrette to exercise independent 304\67243.001\2005122915110300 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 professional judgment is another indicia of CompHealth's right to control Dr. Barrette - Comphealth could have required Dr. Barrette to exercise independent judgment even if ordered by Bliss staff to perform an unreasonable or dangerous procedure. Moreover, CompHealth ignores the remainder of the contract provision, cited above, which plainly grants it the right to control the manner in which Dr. Barrette provides medical services. Read as a whole, the complete provision plainly granted CompHealth broad authority to control the manner in which Dr. Barrette provided medical services at Bliss. Spectrum also had the right to control Dr. Barrette. Under its contract with Tri-West, Spectrum was responsible for supervising and controlling all of the physicians it placed in military facilities: SHR [Spectrum Healthcare Resources] shall provide and maintain a quality control system acceptable to the Government and Tri-West for the services and supplies covered by this Subcontract...[Spectrum] shall similarly require its Lower Tier subcontractors to provide and maintain a quality control assurance system ... SHR is solely responsible for professional liability of the personnel placed in the MTF [military treatment facility]... ... SHR shall be solely liable for the negligent acts or omissions of its agents or contractors and shall ensure that SHR providers maintain full professional liability insurance ... SHR will supervise and control SHR personnel placed in the MTF for purposes of directing the terms and conditions or employment SHR providers, clinical and administrative support staff are supervised by other SHR providers within the MTF. The SHR site medical director has ultimate responsibility for the resource sharing staff on a daily basis. 304\67243.001\2005122915110300 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Dckt. # 101, 3.1; Ex. A, VII, at 8; VIII, 9-10. Under these provisions, Spectrum had the right to control, and was responsible for, Dr. Barrette's clinical practice on a daily basis. These contract provisions also specifically refute Spectrum's conclusory assertion that "as a staffing agency, [it] could not oversee, or more importantly control the details of Dr. Barrette treatment of patients ." Motion at 6. Spectrum not only could oversee and control Dr. Barrette provision of medical services at Bliss, it was required to do so by contract. These contract provisions are undisputed and establish CompHealth's and Spectrum's vicarious liability under the theory of respondeat superior or the supra, relied on by both CompHealth and borrowed servant doctrine. They also distinguish this case from Ruelas v. Staff Builders Personnel Services, Inc., Spectrum. That case involved contract nurses provided to a medical facility by a staffing agency. Ruelas, 199 Ariz. at 346, 18 P.3d at 140. The court affirmed the trial court grant of summary judgment holding that the staffing agency could not be held vicariously liable for the nurses negligence because the plaintiff failed to introduce any evidence that the staffing agency had any right to control the manner in which the nurses provided medical services. Id. The contract at issue in Ruelas did not have a provisions similar to those in Defendants' respective contracts. Id. These contract provisions gave CompHealth and Spectrum control over the specific injury producing activity that goes beyond the merely administrative control the plaintiff relied in Ruelas. There is other evidence in the record establishing both CompHealth's and Spectrum's right to control Dr. Barrette. First, both Spectrum and CompHealth were required to carry professional liability insurance insuring themselves against Dr. Barrette's negligence. See Dckt. # 99, Ex. A, N (CompHealth) ; Dckt. #101, at 16 304\67243.001\2005122915110300 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (Spectrum). The fact that both CompHealth and Spectrum were required by contract to obtain liability insurance protecting themselves against liability for Dr. Barrette's negligence is an admission that Defendants intended and accepted vicarious liability for Dr. Barrette's negligence.1 In addition, both Spectrum and CompHealth were required to maintain a quality assurance program "for the services and supplies" covered by Spectrum's Tri-West contract. Dckt. #101, 3.1 at 6. Also, Dr. Barrette's CompHealth contract indicates that "CompHealth routinely reviews the performance of our contract physicians" and requires Dr. Barrette to participate in these reviews and other quality assurance processes. Dckt. #99, Ex. A at 3 (emphasis added). These quality assurance processes were intended to provide both Spectrum and CompHealth with additional control over Dr. Barrette's provision of medical services at Bliss or on any other assignment. Moreover, there is evidence that Spectrum exercised actual control over Dr. Barrette's treatment of Maj. Moreland. Dr. Barrette is identified in Maj. Moreland medical records as a Spectrum employee. Dckt. #101, Ex. J. Additionally, Dr. Barrette copied Maj. Moreland medical records to Spectrum Healthcare during the course of Maj. Moreland's medical care. Id. From this evidence a jury could reasonably conclude that Spectrum was monitoring the medical services that Dr. Barrette was providing to Maj. Moreland. (This evidence also further refutes Spectrum specious claim that it could not and did not oversee Dr. Barrette's care of Maj. Moreland.) CompHealth claims that the provision of professional liability insurance should not be considered by the Court because it was provided to its locum tenans physicians as a matter of convenience. CompHealth only discusses the professional liability insurance it was required to provide Dr. Barrette. CompHealth ignores that its contract with Dr. Barrette required it to obtain professional liability insurance covering both CompHealth and Dr. Barrette, a fact that is clearly relevant to demonstrate CompHealth's intent and knowledge that it was vicariously liable for Dr. Barrette's negligence while on assignment. 304\67243.001\2005122915110300 1 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 At very least all of this evidence - as well as the other indicia of control noted in Plaintiffs' response to the Defendants' respective motions for summary judgment and the Court's 3/26/07 Order - creates a disputed issue of fact as to whether CompHealth and/or Spectrum had the right to control Dr. Barrette provision of medical services. Ruelas, 199 Ariz. at 346, 18 P.3d at 140 (whether employer had right to control employee performance is an issue of fact for the jury). Either way, neither CompHealth nor Spectrum are entitled to summary judgment on the issue. B. EVIDENCE OF THE GOVERNMENT'S CONCURRENT CONTROL OF DR. BARRETTE DOES NOT EXTINGUISH COMPHEALTH'S OR SPECTRUM'S VICARIOUS LIABILITY. Both Comphealth and Spectrum claim that only the government is vicariously liable for Dr. Barrette's negligence because the government was the only entity that controlled Dr. Barrette's provision of medical services at Bliss. This position is also not supported by either the facts or the law. Neither Spectrum nor CompHealth has provided the Court (or Plaintiffs) with any contract, rule, regulation or government, Army, or Bliss policy that grants the government, Army, or Bliss the right to control the manner in which Dr. Barrette provided medical services. Nor have they produced any evidence that the government, the Army, or anyone employed at Bliss Army Health Center exercised any actual control over the manner in which Dr. Barrette provided medical services there. In fact, Dr. Barrette admits that neither the government, Army nor Bliss exercised any control over the manner in which he practiced medicine at Bliss. In deposition, Dr. Barrette testified that he relied on his own training education and experience in determining Maj. Moreland diagnosis and treatment and that no government physician participated in diagnosing and treating Maj. Moreland. Dckt. 304\67243.001\2005122915110300 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 #101, Ex. B, 135:4-10. Dr. Barrette also testified that military doctors were not present in his operating room nor did a military doctor dictate the manner in which he performed surgical procedures. Dckt. #101, Ex. B, 191:1-16. There is simply no evidence in the record that the government, Army or Bliss had the right to control the manner in which Dr. Barrette provided medical services at Bliss, or exercised any actual control. Even if Defendants could produce evidence that government controlled or had the right to control Dr. Barrette's provision of medical services, CompHealth and Spectrum would still be vicariously liable. The borrowed/lent servant doctrine specifically recognizes that when two or more employers exercise (or have the right to exercise) concurrent control both are jointly liable for an employee's negligence. See McDaniel, 186 Ariz. at 555-56, 925 P.2d at 696-97 (servant can have two masters and that each of them may be vicariously liable for his actions) ; Ruelas, 199 Ariz. 344, 348, 18 P.3d 138, 142 ( two employers can be vicariously liable for an employee's actions if they both have joint control over performance of the employee's specific activities). The fact that the Bliss may have had the right to control Dr. Barrette provision of medical services does negate either Spectrum's or CompHealth's vicarious liability. In order to extinguish Spectrum's and CompHealth's vicarious liability, Defendants must have completely surrendered control over Dr. Barrette to the government. Put another way, the government must have had exclusive control over the manner in which Dr. Barrette provided medical services.2 McDaniel, 186 Ariz. 2 Spectrum argues that Ruelas abandoned the exclusive control test established in McDaniel. Spectrum misquotes and misinterprets Ruelas. There, the court stated that control over all aspects of the employment relationship is not required the focus is on which employer had the right to control the specific injury-causing activity. Ruelas, 199 Ariz. at 347, 18 P.3d at 141 (emphasis added). This dicta does not displace the requirement established in McDaniel that a 12 304\67243.001\2005122915110300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 at 553, 925 P.2d at 694. The contract provisions discussed above establish that the opposite was true in this case. Both Spectrum and CompHealth retained - and were required by contract to retain - the right to control Dr. Barrette provision of medical services. Neither Defendant can make the showing required to off-load vicarious liability on to the government. B. SPECTRUM'S HYPOTHETICAL ILLUSTRATES THE FLAWS IN THE DEFENDANTS' ARGUMENTS. In its motion, Spectrum uses a hypothetical to illustrate its position that for all practical purposes the government, not it or CompHealth, controlled Dr. Barrette. The hypothetical asks what a Bliss staff member would likely do upon discovering that Dr, Barrette planned to perform an unrecognized or unacceptable surgical technique. Spectrum argues that the Bliss staff member would likely report the problem to a base commander, who would then intercede with Dr. Barrette. Spectrum claims it is highly unlikely that the staff member would have even heard of Spectrum, let alone who know how to contact a Spectrum representative. Spectrum claims it would not hear about the incident until weeks later. With this hypothetical Spectrum seeks to establish that it could not have possibly exercised any control over Dr. Barrette. This hypothetical is not consistent with the facts in this case. Spectrum was required under its Tri-West contract to provide on-site management and supervision of the personnel it placed at military treatment facilities, including a medical director. Dckt. #101, Ex. A, Sec. II, at 3-4; Sec VIII, at 10. Dr. Barrette testified at deposition that after just a few months he knew of other Spectrum personnel at Bliss. Dckt. #101, general employer is generally liable unless a special employer has exclusive control over the injury-causing activity. 304\67243.001\2005122915110300 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Ex. B. Spectrum personnel would be easy to identify as they did not wear Army uniforms and stamped medical records identifying themselves as Spectrum employees. Dckt. 101, Ex. K, 159:20-22; Dckt. 101, Ex. J. The assertion that a Spectrum supervisor or other representative were thousands of miles away, and would not be known by staff members at Bliss is not supported by the facts. In addition, Spectrum's TriWest contract dictates a very specific conflict resolution process that requires Spectrum to be involved in any situation like that posed in the hypothetical: SHR shall immediately notify TriWest when allegations of alleged wrongdoing by SHR resource sharing personal are received from an MTF, citing all facts and circumstances. SHR shall inform TriWest of the actions to be taken by SHR to resolve the matter. SHR shall also inform TriWest whether the action plan has received the concurrence of the MTF Commander. When the MTF Commander disagrees with the action to be taken by SHR to resolve the issue with the resource sharing personnel, an SHR representative shall meet (at SHR's expense) with the MRF Commander and resolve the issue. Dckt. #101, Ex. A at 16. This provision clearly gives Spectrum control over the manner in which to deal with questionable conduct by its contract physicians and makes it likely that Spectrum would be notified promptly, and not "weeks after" as Spectrum claims. The bigger problem with Spectrum's hypothetical is that it simply misses the point. The dispositive factual issue is whether Spectrum (or CompHealth) had the right to control Dr. Barrette provision of medical services, regardless of whether: (1) they exercised actual control (or were likely to), and (2) the government also had the right to control Dr. Barrette. Spectrum's hypothetical has nothing to say on these 14 304\67243.001\2005122915110300 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 issues. Flipping the hypothetical, however, illustrates the dispositive issues and proves Defendants' vicarious liability. Say, for example, that the Bliss surgical staff discovered that Dr. Barrette planned to perform an unrecognized or unacceptable surgical procedure and called both Spectrum and CompHealth to report it. Would Spectrum and CompHealth have the ability to force Dr. Barrette to perform the procedure safely or to prevent Dr. Barrette from performing the procedure at all? The answer under the various contracts before the Court is an unequivocal yes. There is no basis to extinguish Spectrum or CompHealth vicarious liability. Defendants' respective motions to reconsider on this issue should be denied. III. CONCLUSION Defendants' respective motions to reconsider should be denied on all grounds, and the Court's 3/26/07 Order affirmed. RESPECTFULLY SUBMITTED this 8th day of 2007. HARALSON, MILLER, PITT, FELDMAN & McANALLY, P.L.C. By: /s/Melissa L. English Thomas G. Cotter Stanley Feldman Melissa L. English Attorney for Plaintiffs I hereby certify that on the 8th day of June, 2007, I electronically transmitted the foregoing document to the U.S. District Court Clerk's Office by using the ECT System for filing and 304\67243.001\2005122915110300 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 transmittal of the foregoing to the following ECF Registrants: The Honorable David C. Bury United States District Court 405 West Congress St. Tucson, Arizona 85701 Kari B. Zangerle Jill M. Covington Campbell, Yost, Clare & Norell, P.C. 101 North First Avenue, Suite 2500 Phoenix, Arizona 85003 Attorneys for Defendants Spectrum Healthcare Nationwide, Inc. David F. Toone MacBan Law Offices 1795 East Skyline Drive, Suite 155 Tucson, Arizona 85718-8102 Attorneys for CompHealth Calvin L. Raup Richard H. Rea Michelle L. Miernik Shughart Thomson & Kilroy, P.C. Security Title Plaza 3636 North Central Avenue, Suite 1200 Phoenix, Arizona 85012 Attorneys for Defendants Barrette __/s/ Melissa L. English__ 304\67243.001\2005122915110300 16

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