Case 2:14-cv-01207-RFB-PAL

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Document 212

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ADAM PAUL LAXALT

Attorney General
VIVIENNE RAKOWSKY
Deputy Attorney General
Nevada Bar No. 009160
555 E. Washington Avenue
Suite 3900
Las Vegas, Nevada 89101
(702) 486-3103
(702) 486-3416 (fax)
VRakowsky@ag.nv.gov
Attorneys for Defendants
Nevada State Athletic Commission,
Dr. Margaret Goodman
and Marc Ratner

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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PATRICIA HARDING MORRISON, individually

and in her capacity as Executor / Administrator
of the estate of Tommy Morrison, a deceased
individual,

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Plaintiff,
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vs.
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QUEST DIAGNOSTICS INCORPORATED, a )
Nevada domestic corporation; JOHN HIATT; a n )
individual; DR. MARGARET GOODMAN, an
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individual; NEVADA STATE ATHLETIC
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COMMISSION; an unknown business entity;
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MARC RATNER, an individual.
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)
Defendants.
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Case No. 2:14-cv-01207-RFB-PAL

DEFENDANTS NEVADA STATE

ATHLETIC COMMISSION,
DR. MARGARET GOODMAN
AND MARC RATNERS MOTION
TO STRIKE PLAINTIFFS
SEPARATE STATEMENT OF
DISPUTED FACTS CD #193-4

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COME NOW Defendants, Nevada State Athletic Commission, Dr. Margaret

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Goodman, and Marc Ratner (State Defendants), by and through counsel, Adam Paul

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Laxalt, Nevada Attorney General, and Vivienne Rakowsky, Deputy Attorney General,

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and hereby file this Motion to Strike Plaintiffs Separate Disputed Facts (CD #193-4),

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Again, in an attempt to complicate this matter and confuse the issues, Plaintiff

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incorporates her arguments against Quest in her Disputed Facts and Opposition to the State
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Defendants Motion for Summary Judgment f MSJ). Due to limited space, the State

Defendants will only address allegations that concern the State Defendants, but hereby do

not abandon any arguments that are not addressed due to a lack of adequate space to

address them.
Furthermore, the

State Defendants need not address statements in the

Plaintiffs motions concerning any duty to warn concerning the HIV test; expert reports

that have been stricken such as the forensic document examiner; subpoenas that

were never issued by any State Defendant; the science behind HIV testing performed

by a licensed laboratory or by any medical provider that has provided medical records

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of Mr. Morrison; written discovery not served on the State Defendants; Plaintiffs

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onerous physician patient questionnaire which is the subject of a Court Order (CD

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#181); federal regulations related to laboratory testing; and any other disputed fact

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that is not related to the scope of the State Defendants.

I.

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INTRODUCTION

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Defendants move the Court to strike Morrisons Separate Statements of Disputed

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Facts and Conclusions of Law (CD #193-4) (Separate Statements) because the

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Local Rules of this Court prohibit filing separate statements of disputed facts in support

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of a summary judgment response, D. Nev. LR 56-1, L-R 7-3 (a )\ and Morrisons

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separate motions are not supported by a single citation to admissible evidence and do not

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contradict any of the undisputed facts and evidence presented by the State Defendants in

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support of their motion (CD #185). State Defendants also move to strike all portions of

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Plaintiffs pleadings that are not supported with admissible evidence.

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Ill

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III

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1 Morrisons separate summary judgment responses to the State Defendants Motion for
Summary Judgment (CD #193-4, 193-3, 194, 193-3) which allegedly only addresses the
Nevada State Athletic Commission, constitute more than 80 pages of briefing, far in
excess of the 30-page limitation prescribed by Local Rule 7-3(a).
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II.

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STANDARD OF REVIEW

In addition to the power to strike pleadings under Federal Rule 12(f), a district
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court has the inherent power to strike a partys submissions other than pleadings.
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Laqhaei v. Fed. Home Loan Mortq. Coro., No. 3:12-cv-00307-MMD-VPC, 2012 U.S.
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Dist. LEXIS 157576, 2012 WL 5398874, at *1 (D. Nev. Nov. 2, 2012) (citing M etzger
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v. H ussm an. 682 F. Supp. 1109, 1110 (D. Nev. 1998). Courts in this district have
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reasoned that the inherent power to strike may be exercised against motions and
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affidavits that fail to comply with the Federal Rules of Evidence and Civil Procedure.
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See, e.g., USF Ins. Co. v. Smiths Food and Drug C tr.. No. 2:10-cv-0513- RLH-LRL,
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2011 U.S. Dist. LEXIS 40887, 2011 W L 1326008, at *2 (D. Nev. Apr. 6, 2011).
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Morrisons Separate Statements were filed in violation of this Courts Local Rules, and
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should be struck.
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III. ARGUMENT
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A.

The Local Rules Require Parties File Their Undisputed Facts As

Part Of Their Summary Judgment Response.
On June 8, 2016, the State Defendants filed a single joint Motion for Summary

Judgment on all of Morrisons claims. (CD #174). Prior to filing the Motion for Summary
Judgment, the State Defendants requested Leave of the Court to file additional pages in
their MSJ. (CD #167). By the MSJ due date, June 8, 2016, no decision was rendered by
the Court, and the State Defendants filed a version of the MSJ which exceeded the page
limit in LR 7-4 (now replaced by LR 7-3).

On June 20, 2016, the State Defendants

received Notice that the Motion to Enlarge was denied. (CD #180). State Defendants cut
twenty pages off the content and refiled a compliant 30-page motion as an Errata
(CD #185) along with the original exhibits (CD # 185-1-28), a Notice of Errata, and a
Declaration that no exhibits or different content had been added to the MSJ. (CD #186,
186-1). State Defendants MSJ included a statement of undisputed material facts within
the 30-page limitations with citations to the supporting competent summary judgment
evidence as required by the local rules. Fed. R. Civ. P. 56., LR 56-1, LR 7-3(a).
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Unfortunately, the Plaintiff believes that the same rules do not apply to her. Rather

than file a single response in opposition to Defendants single MSJ, on July 5, 2016,

Plaintiff filed many documents containing more than 80 pages of argument in response

to a single MSJ. Plaintiff docketed the motions as exhibits and did not properly identify

the content of the filings.

and Authorities which was docketed as an Exhibit (CD #193-3), a 30 page Statement of

Disputed Facts in Support of its Opposition to the State Defendants MSJ, which was

also docketed as an Exhibit (CD #193-4), a 10 page Declaration, which is more

argument in support of its opposition, docketed as "Exhibit, (CD #1942-2), an

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Opposition to the MSJ, (CD #194), Plaintiffs Exhibit List (CD #194-1) without attaching

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any actual Exhibits - just argument about the exhibits (with the exception of TCB #1

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which is filed as CD #194-3), Plaintiffs Declaration in support of Opposition (194-2), and

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an 11 page Opposition to the State Defendants Exhibits, Docketed as an Exhibit (which

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is also argument). (CD #194-3).

The specific documents are comprised of a 30 page Points

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As stated above, Plaintiff did not file the Exhibits TCB 2-23 on her Exhibit List, on

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July 5, 2016, unless the Exhibits were buried elsewhere in her filings. Defendants have

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searched through the July 5th filings and unsuccessfully looked for all documents that

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have a Caption naming the State Defendants. If and when the actual Exhibits are found,

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the State Defendants reserve the right to address the Exhibits listed in CD #194-1 at that

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time.

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Additionally,

Plaintiff arbitrarily assigned the aforementioned

responses to

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address the Nevada State Athletic Commission (NSAC), and filed a number of

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additional verbose and unauthorized responses to Dr. Goodman and Marc Ratner.

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an effort to avoid this Motion to Strike, the State Defendants initiated a meet and confer

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with respect to these filings, and the Plaintiff responded that "unless you can cite the

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FRCP of a precedent or rule which forbids this Plaintiff from filing responses to each of

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the named defendants, two further responses to: GOODMAN and RATNER shall be

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forthcoming.

Ms. Morrison did not address the fact that her July 5th
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In

responses

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allocated to the NSAC were more than 2-1/2 times the 30 page limit.

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See Exhibit A"

Plaintiffs separate filings are prohibited by the Court Local Rules and should be

stricken. D. Nev. LR 56-1, LR 7-3(a). The Local Rules provide that summary judgment

motions and responses must contain a concise statement setting for each material

fact material to the disposition of the m otion. LR 56-1. The statem ent of facts

required by Local Rule 56-1 is counted toward the [30-page] page limit in LR 7-3.. LR

56-1.

Plaintiffs Separate disputed facts (CD #193-4) and Points and Authorities

(CD #194-3), were not included in her Opposition to State Defendants summary

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judgm ent motion (CD #193-3). Altogether, Plaintiff filed more than 80 pages of

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argument to address the NSAC and has now files several hundred more pages to

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address Dr. Margaret Goodman and Marc Ratner. This is all in violation of LR 56-1 and

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LR 7-3 which govern summary judgment motions, oppositions and replies.

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Moreover, Plaintiff did not seek leave of the Court to exceed the 30 page limitation

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before filing all of the aforementioned documents. Plaintiffs separate pleadings should

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therefore be stricken and not considered by the Court, because taken together with her

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memorandum in response to State Defendants Motion for Summary Judgment, the number

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of pages greatly exceeds the page limitations prescribed by the Local Rules. The separate

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documents are additional responses not authorized by the Rules, and therefore are

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improper and should be stricken.

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B.

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Plaintiffs Contentions.

Plaintiffs Separate Motions Do Not Include Evidence In Support Of

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The Courts Local Rules require that [m]otions for summary judgment and responses

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thereto must include a concise statement setting forth each fact material to the disposition

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of the motion that the party claims is or is not genuinely in issue, citing the particular

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portions of anv pleading, affidavit, deposition, interrogatory, answer, admission, or other

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evidence on which the party relies. D. Nev. LR 56-1 (emphasis added). None of Plaintiffs

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separate motions include a single citation to the evidence in the Summary Judgment
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Record, and therefore should be stricken.

194-3, 193-4).

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See generally , (CDs #194, 194-1, 194-2,

As an example, although Plaintiff admitted in her deposition that the applicant has the

responsibility to comply with the requirements for a license, it appears that the Plaintiff is still

blaming the NSAC for relying on the HIV test performed by an accredited laboratory.

Contrary to the requirement that the facts be supported with admissible evidence, Plaintiff

has not cited to any evidence to back her allegations. The truth is that the Plaintiff does not

have any evidence that the State Defendants did anything legally improper by relying on the

HIV tests performed by an accredited laboratory.

When Mr. Morrison planned to fight in

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Nevada he had a month to provide the medicals. Instead, Mr. Morrison arrived in Las Vegas

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a few days before the fight without complete medicals. Mr. Morrison tried to get away without

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fulfilling the legal requirements for a license, but he realized that he could not fight without

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taking an HIV test. NAC 467.027.

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Without citing to specific proof in the record, Plaintiff cannot sustain her claims. To

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make the record clear, the NSAC does not send license applicants to a particular laboratory,

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and frankly does not care which accredited laboratory that the applicant uses as long as the

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applicant shows that he or she is not infected with the human immunodeficiency virus.

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NAC 467.027. In this case, the records show that Dr. Voy, Mr. Morrisons physician, ordered

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the test from Quest. (CD #185, Exhibit Y). The bottom line is that Mr. Morrison bore the

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responsibility to comply with the statutory requirements if he wanted to be licensed.

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Plaintiff either does not understand, or more likely refuses to understand, that as a

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regulating agency, the NSAC does not need a diagnosis of HIV, and only requires a negative

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test. A diagnosis is not relevant or necessary for licensing. In February 1996, Mr. Morrison

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failed to provide the necessary proof that he was negative for HIV and was denied a license.

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Thousands and thousands of applicants have been able comply with this requirement

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over the last twenty years.

Because Mr. Morrison was not able to provide a negative test, he

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could not be licensed. Because Mr. Morrison could not be licensed, he could not take part in

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the boxing contest scheduled for February 10, 1996, and the fight was cancelled. The only
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one responsible for Mr. Morrisons failure to provide a negative test was Mr. Morrison himself

- not the process, not the requirement, not the laboratory, not the regulator.

It cannot be stated enough times that the NSAC, along with its executive director, are

not medical providers and cannot write a prescription to have an HIV test performed.

Mr. Morrison was never a patient of Dr. Goodman and she was not involved with the events

of 1996. Therefore, none of the State Defendants could have sent Mr. Morrison to the lab for

his HIV test. Moreover, the NSAC is not concerned with any of the other diseases

Mr. Morrison suffered from in the years subsequent to 1996. There is no admissible evidence

of false positives as a result of other conditions, and even if there were other ailments,

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in February 1996 Mr. Morrison did not provide a negative HIV test and could not be issued a

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license.

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Plaintiffs latest allegation that somehow the HIV test was ordered by someone

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other than Dr. Voy borders on the absurd, but again, Plaintiff continually changes the

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facts in the case to fit each new theory of liability.

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Dr. Voy ordered the test and should have received the results, regardless of the consent

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form that Mr. Morrison signed. Now Plaintiff alleges that the NSAC ordered the test.

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2011, Morrison was provided the same test result that is in the record.

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(Exhibit Y). The test plainly states that Dr. Voy was the ordering physician, and Mr.

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Morrison never alleged that Dr. Voy did not order the test.

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years arguing that Dr. Voy ordered the test and should have been notified of the results,

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instead of the NSAC.

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Q:
...Do you know if Dr. Voy was in the office to receive the test results on
Saturday, February 10, 1996? Do you even know that?

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Until now, Plaintiff argued that

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W ere talking about Tommy Morrison here.

Q:

No. Im talking about the ordering physician.

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(CD #185-25

In fact, Plaintiff has spent two

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A:
Right, I know, but were talking about Tommy Morrison getting ready for a
fight and somebody waiting for results so that he could fig h t...

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Deposition of Patricia Morrison, p, 153:6-16.

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This is just another instance where the Plaintiff changes her facts to suit her ever7

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changing new theories of liability.

Nevertheless, this Honorable Court should not lose sight of the issues in this

case. This is a simple case of an applicant who failed to obtain medical clearance to be

licensed. This case is not about the testing process for HIV, package inserts, federal

law, or the other diseases Mr. Morrison developed as a result of his compromised

immune system due to untreated HIV.

cleared to fight and was not allowed to take part in unarmed combat in Nevada.

This is about a fighter who was not medically

It is well established that factual contentions in a motion for summary judgment must

be supported by admissible evidence and specific citation to that evidence." Goldstein v.

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Turnberrv Pavilion Partners Ltd. P 'ship, 02:07-CV-00387-LRH-VPC, 2007 U.S. Dist.

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LEXIS 85996, at *1 n.1 (D. Nev. Nov. 9, 2007). In addition to the Courts Local Rule, the

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Federal Rules of Civil Procedure require that [a] party asserting that a fact is genuinely

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disputed must support the assertion by . . . citing to particular parts of materials in the

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record, including depositions, documents, electronically stored information, affidavits or

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declarations, stipulations (including those made for purposes of the motion only),

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admissions, interrogatory answers, or other materials . . . . Fed. R. Civ. P. 56(c)(1)(A).

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Moreover, contrary to P laintiffs assertion the burden of proof and burden of

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persuasion

is on the P laintiff to prove her allegations.

In Plaintiffs separate

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statements, she makes numerous false and unsupported allegations about the State

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D efendants conduct, yet ignores the LR 56 and does not cite to any specific

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evidence to back up her allegations.

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evidence.

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now, she will not be able to back up her allegations later.

Discovery is over, and the P laintiff has no

If the Plaintiff cannot back up her assertions with adm issible evidence

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Furthermore, no m atter how many times the P laintiff is told that the State

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Defendants have disclosed their records; P laintiff still alleges that there are more

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records not disclosed.2 The NSAC is a public agency and cannot, by law, conceal

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2 Plaintiff continues to accuse counsel and State Defendants of concealing information

and hacking into personal health data (CD # 193-4:18-23). If Plaintiff has proof of the
alleged misconduct, she should provide it or stop making unsupported allegations.

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any public records. See generally, NRS Chapter 239, NRS 467.1005.

after a meet and confer on May 5, 2016, Plaintiff acknowledged that the State

Defendants do not have any inform ation related to test kit disclaim ers and isolation

of HIV. See Meet and Confer emails attached hereto as Exhibit B .

In addition,

C ontrary to the P laintiffs allegations, there is no contract between the NSAC

and Quest for HIV testing.

The NSAC is not a medical provider and does not

provide an order for HIV testing. The NSAC requires the applicant to show that he or

she is not infected with the human immunodeficiency virus and it is not up to the NSAC

to perform an analysis of the test, or even know what tests an accredited laboratory

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uses. The NSAC has not subpoenaed any documents or medical records in this case. Any

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medical records used as exhibits to the MSJ were disclosed to the State Defendants at the

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same time they were disclosed to the Plaintiff.

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available to the Plaintiff long before they were disclosed to the State Defendants.

In fact, in many cases, the records were

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Morrison had fought numerous times in Nevada prior to 1996, and was aware of the

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requirement for a negative HIV test. The NSAC could have disclosed the results to the

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public pursuant to NRS 467.1005 (any medical record used in the decision process to

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grant or deny a license is public information).

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Nevada law for disclosing information concerning an applicant:

In addition, there is no liability under

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An application for a license constitutes a request for a

determination of the applicants general suitability, character,
integrity, and ability to participate or engage in, or be
associated with contests or exhibitions of unarmed combat.
The burden of proof is on the applicant to establish to the
satisfaction of the Commission that the applicant is qualified
to receive a license. By filing an application with the
Commission, an applicant accepts the risk of adverse public
notice, embarrassment, criticism, financial loss or other
action with respect to the application, and expressly waives
any claim for damages as a result thereof. Any written or oral
statement that is made by any member of the Commission
or any witness testifying under oath which is relevant to the

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Although Plaintiff is pro se, she is still subject to Rule 11 and if Plaintiffs misconduct
continues, the State Defendants will look into commencing the Rule 11 process.
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application and investigation of the applicant is absolutely

privileged and does not impose liability for defamation or
constitute a ground for recovery in a civil action.
NRS 467.100(3)
With respect to some of the other "disputed facts
1. Tony Holden was Mr. Morrisons representative and was the proper contact to
relay the information that the fight was to be cancelled because Mr. Morrison
was not medically cleared to fight. Deposition of Tony Holden, 59:24-25, 60:1-3,
60:18-23.
2. Truth is a complete defense to any allegations of defamation. Mr. Morrison
tested positive for HIV in February 1996 because he was positive for HIV in
February 1996. If, in 2007, the Chairman of the Medical Advisory Board
responded to questions from the media about Mr. Morrisons test results from
1996 and provided information that was already public since Mr. Morrison
announced it himself in 1996, it is not actionable. NRS 467.100(3). Furthermore,
Mr. Morrison was alive in 2007, and had the opportunity to take action if he
chose to do so, but he did not do so. Plaintiff has failed to provide any evidence
that provides for a special relationship between an applicant who has not been
issued a license and a regulator.
3. Mr. Morrison could no longer take part in boxing because he was positive for
HIV, not because of the test or because of the process. (CD #185-6 (Exhibit
F)). Plaintiff has failed to provide a multi-million dollar contract. Morrison lost to
Lennox Lewis and was only to receive a $50,000 purse for this fight. Exhibit
BB
4. It is the Plaintiffs burden and not the State Defendants burden to prove that a
particular test diagnoses or does not diagnose HIV.
5. The signature of Mr. Morrison on the consent form is the same as his signature
on the other consent forms that he signed over several years.
6. The burden is not on the NSAC to prove the authenticity of a document kept in
the regular course of business. Plaintiff has not submitted any proof of a 10
million dollar contract in existence on February 10, 1996. (CD #185-28 (Exhibit
"BB)).

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7. Plaintiff has not submitted any proof that Dr. Voy did not order the test in
February 1996. (CD 185-25 (Exhibit Y)). Plaintiff has not submitted any
evidence to prove that the 1996 test was tampered.

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c. Plaintiff has failed to comply with the Local Rules.

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W ithout evidence to support her claims, Plaintiffs statements are merely

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conclusory arguments that cannot defeat the State Defendants uncontroverted

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summary judgment evidence.

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Plaintiff, as the party opposing State Defendants

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motion for summary judgment, must introduce sufficient evidence supporting the

claimed factual dispute to require a jury or judge to resolve the parties differing versions

of the truth at trial. British Airways Board v. Boeing C o., 585 F.2d 946, 952 (9th Cir.

1978) (citations omitted). Plaintiff cannot avoid summary judgment by relying solely

on conclusory allegations that are unsupported by factual data. Tavlor v. List, 880

F.2d 1040, 1045 (9th Cir. 1989). Plaintiff must go beyond the assertions and

allegations of her pleadings and set forth specific facts by producing competent

evidence that shows a genuine issue for trial. See FED. R. CIV. P. 56(e); C e lo te x ,

477 U.S. at 324. Morrison has not done so. UBS Fin. Servs. v. Garrett. 2015 U.S.

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Dist. LEXIS 29754 (D. Nev. Mar. 9, 2015) (Merely stating reasons for opposing

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summary judgment without pointing to any evidence of fact to support such claims does

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not preclude summary judgm ent.) (citing A n d e rso n , 477 U.S. at 252; Nolan. 686

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F.2d at 812). Accordingly, Plaintiffs Separate Statements do not comply with the

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requirements of the Courts Local Rules and should be stricken.

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IV. CONCLUSION

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For the foregoing reasons, State Defendants respectfully request that the Court

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strike Plaintiffs Separate Statements.

Respectfully submitted this 22nd day of July, 2016.

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ADAM PAUL LAXALT

Attorney General

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Bv/s/VIVIENNERAKOWSKY____________
VIVIENNE RAKOWSKY
Deputy Attorney General
Attorneys for Defendants Nevada State
Athletic Commission, Marc Ratner and
Dr. Margaret Goodman.

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CERTIFICATE OF SERVICE

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Document 212

Pursuant to FRCP 5(b), I certify that I am an employee of the Nevada Office of the
Attorney General, and that on the 22nd day of July, 2016, I did cause a true copy of

DEFENDANTS NEVADA STATE ATHLETIC COMMISION, MARC RATNER AND DR.

MARGARET

STATEMENT OF DISPUTED FACTS CD #193-4 to be served via electronic service by

the U.S. District Court CM/CD # system to the parties on the Electronic Filing System

and e-mailed a courtesy copy and Certified US Mail copy to Plaintiff as follows:

GOODMANS

MOTION

TO

STRIKE

PLAINTIFFS

SEPARATE

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Patricia Harding Morrison

P.O. Box 454
Rose Hill, Kansas 67133
tommyandtrishamorrison@yahoo.com; tommythedukemorrison@yahoo.com
(Courtesy copy via email and US Certified Mail)
Faye Caldwell, Esq.
Caldwell & Everson
2777 Allen Parkway, Suite 950
Houston, TX 77019
(Via CM/ECF)
Keith A. Weaver, Esq.
Lewis Brisbois
6385 S. Rainbow, Blvd., #600
Las Vegas, NV 89101
(Via CM/ECF)
/s/ Michele Caro ________ _
An employee of Office of Attorney General

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EXHIBIT A

EXHIBIT A

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Vivienne Rakowsky
From:
Sent:
To:
Cc:
Subject:

Tommy and Trisha Morrison <tommyandtrishamorrison@yahoo.com>

Friday, July 08, 2016 4:54 PM
Vivienne Rakowsky
Faye Caldwell; Keith Weaver
Re: MEET AND CONFER

Ms. Rakowsky:
MSJ FILED BY RAKOWSKY: filed June 08th, 2016 and again June 23rd, 2016:
This case was filed against five (5) defendants.
The decision to file one MSJ for all three of your clients and lump them together was your choice.
However, unless you can cite the FRCP of a precedent or rule which forbids this Plaintiff from filing
responses to each of the named defendants, two further responses to: GOODMAN and RATNER
shall be forthcoming.
PLAINTIFF'S DOCKET if 195:
Plaintiff does object to the tardy filing of the 'Errata MSJ' for NSAC/GOODMAN/RATNER, and shall
not withdraw this objection. Dispositive Motions were to have been filed on or before June 08th, 2016,
and not on June 23rd, 2016. No Order was given by the Court to extend the deadline for the Attorney
General's Office in this case, that Plaintiff is aware of.
Please include a copy of this response to the 'meet and confer'.
PATRICIA HARDING MORRISON

On Friday, July 8, 2016 4:15 PM, Vivienne Rakowsky <VRakowskv@.aq.nv.qov> wrote:

MEET AND CONFER

Dear Ms .Morrison:
The purpose of this meet and confer is to request that you withdraw Document 195 which is your
Opposition to the States Errata, and refile a corrected response to the State Defendants Motion for
Summary Judgment that conforms to the page limit per Rule 7-4.
I have attached a draft of the State Defendants response, and believe that you should have the
opportunity to withdraw your objection and correct your response to the State Defendants
MSJ because your opposition to the Errata has no basis in law or fact, and your response(s) to the
MSJ have exceeded the page limit by more than two and one halftim es.
If you do not respond that you intend to withdraw your opposition and correctly file a single compliant
Response to the MSJ, the State Defendants plan to file this or a similar possibly stronger version of
the attached Response on Monday, July 11,2016.
Respectfully,
Vivienne
Vivienne Rakowsky, Deputy Attorney General
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State of Nevada
Office of the Attorney General
555 East Washington Avenue, Suite 3900
Las Vegas , Nevada 89101
vrakowskv@aq.nv.aov
Phone: {702)486-3103
Fax: (702) 486-3416
This message and attachments are intended only for the addressee(s) and may contain information that is
privileged and confidential. If the reader of the message is not the intended recipient or an authorized
representative of the intended recipient, I did not intend to waive and do not waive any privileges or the
confidentiality of the messages and attachments, and you are hereby notified that any dissemination of this
communication is strictly prohibited. If you receive this communication in error, please notify me immediately by
e-mail at vrakowskv@aq.nv.qov and delete the message and attachments from your computer and network.
Thank you.

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EXHIBIT B

EXHIBIT B

Page 1 of 5

Case 2:14-cv-01207-RFB-PAL Document 212-2 Filed 07/22/16 Page 2 of 5

Vivienne Rakowsky
From:
Sent:
To:
Subject:

Tommy and Trisha Morrison <tommyandtrishamorrison@yahoo.com>

Thursday, May 05, 2016 7:52 PM
Vivienne Rakowsky; Faye Caldwell; Keith Weaver
Re: Morrison v Quest et al 'Meet and Confer dated May 04, 2016

Plaintiffs responses to Ms. Rakowsky and Ms.Caldwell as per below:

MAY 05, 2016:
Ms. Rakowsky,
I appreciate your prompt response to the meet and confer initiated by this Plaintiff.
You have clarified on behalf of Defendants NSAC, GOODMAN and RATNER that they do not
possess nor have access to the items that Plaintiff has requested in this meet and confer, including
the manufacturer's test kit disclaimers of the "QUEST HIV" tests used on TOMMY between 1996 and
2013.
Furthermore, that you do not possess any proof of isolation or purification or any methodology used
to identify and diagnose the human immunodeficiency virus in the blood of TOMMY.
Moving forward, you have also made your point that your clients do not wish to be lumped together
with Defendants HIATT and QUEST, and that if Plaintiff requests the same information again of your
clients, that their answers will not result in a different response.
Plaintiff hereby confirms that Defendants NSAC, RATNER and GOODMAN will not be served with a
Motion to Compel pertaining to this meet and confer.
Thank you for your assistance.
PATRICIA HARDING MORRISON.
MAY 05TH, 2016:
REPLY TO:
TO: MS.CALDWELL counsel for QUEST and HIATT:
Plaintiff is in receipt of your response to this meet and confer.
Your response is however unsatisfactory.
In good faith, Plaintiff will allow you to make an additional response by 9.30am on Friday May 6th,
2016, in order to respond to Plaintiff with, at best, if the following documents, that have not been
produced to date to Plaintiff with your subpoenas served nationwide on physicians and medical
providers, exist or not and whether QUEST and HIATT will surrender them without a Motion to
Compel:

proof of isolation and purification and methodology used to identify and diagnose the human
immunodeficiency virus in the blood of Tommy Morrison;
*photo images of the human immunodeficiency virus in the blood of Tommy Morrison;
*all clinical laboratory testing for all other non-HIV-ailments by all physicians subpoenaed by
QUEST and HIATT which has not been included in the voluminous amount of documents;
*physical and clinical examinations performed by each physician on Tommy Morrison;
symptoms of all medical conditions by all physicians in Tommy Morrison;
copy of subpoena served on Dr.Robert Voy , 1996, Las Vegas, Nevada;
*UNMC 'aids' defining diseases upon the final blood draw of Tommy Morrison at death;
*UNMC photo images of the human immunodeficiency virus in the blood of Tommy Morrison
upon death;
Hepatitis 'C results from Quest in Las Vegas, Nevada, on February 10, 1996.
i

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*all test requisition forms completed by all physicians ,and received by each named QUEST
laboratory , or custodian of records, as listed on Defendants QUEST and HIATT'S current
witness disclosure received by Plaintiff after April 5th, 2016;
*all manufacturer packet inserts on all the 'H IV testing performed on Tommy Morrison by all
physicians and all laboratories that have been served with a subpoena after April 5th, 2016.

If Plaintiff does not receive a response, or a satisfactory response, by Friday 9.30am, May
06th,2016, Plaintiff shall move the Court to compel Defendants QUEST and HIATT to produce
documents.
Thank you for your immediate attention.
PATRICIA HARDING MORRISON.

Faye Caldwell <FCaldwell@caldwelleverson.com>

To
'Tommy and Trisha Morrison' Vivienne Rakowsky Keith Weaver
Today at 3:21 PM
Ms. Morrison:
There are no outstanding discovery requests for the majority of documents you identify in your email, and
Defendants have previously responded to those few requests that have already been made. Additionally, to
the extent identified documents actually exist, Defendants do not possess those records. Lastly, Quest
Diagnostics has no obligation to create documents in response to any request for production, and Defendants
also have no legal authority to force any third party to do so.

Faye

On Thursday, May 5, 2016 9:54 AM, Vivienne Rakowsky <VRakowsky@ag.nv.gov> wrote:

Dear Ms. Morrison:

Please consider this correspondence the State Defendants response to your meet and confer
email of May 4, 2016. The State Defendants, Dr. Margaret Goodman, Marc Ratner and the NSAC ,
have repeatedly informed you that they do not have any of the medical records (other than what has
been provided in this litigation) or any of other similar items that you continue to request.
Contrary to your assertion, the State Defendants have not served any subpoenas before or
after April 5th, and have not sent you the voluminous documents that you refer to in your
email. Moreover, the State Defendants do not have access to the documents to which you believe is
in the custody possession and control of all the physicians named by Quest and Hiatt.
Your May 4, 2016 meet and confer request for additional documents seeks the same or nearly
the same documents as your recent Motion to Compel (CD# 127). The State Defendants responded
to the Motion to Compel, and hereby stand by their response to your Motion to Compel as well as the
responses to your written discovery, and therefore have nothing further to add.
2

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Finally, the State Defendants again respectfully request that you stop lumping all the
defendants together. Continuing to request the same information over and over again will not result
in a different response. As a result, if you follow through with your threat to file a Motion to Compel
naming any of the State Defendants, the State Defendants will respond by moving that the court
sanction you and award the State of Nevada costs and fees.
Respectfully,
Vivienne
Vivienne Rakowsky, Deputy Attorney General
State of Nevada
Office of the Attorney General
555 East Washington Avenue, Suite 3900
Las Vegas , Nevada 89101
vrakowskv@aa.nv.gov
Phone: (702) 486-3103
Fax: (702) 486-3416
This message and attachments are intended only for the addressee(s) and may contain information that is
privileged and confidential, if the reader of the message is not the intended recipient or an authorized
representative of the intended recipient, I did not intend to waive and do not waive any privileges or the
confidentiality of the messages and attachments, and you are hereby notified that any dissemination of this
communication is strictly prohibited. If you receive this communication in error, please notify me immediately by
e-mail at vrakowskv@aq.nv.qov and delete the message and attachments from your computer and network.
Thank you.*

From: Tommy and Trisha Morrison [mailto:tommyandtnshamorrison@yahoo.com]

Sent: Wednesday, May 04, 2016 10:43 AM
To: Faye Caldwell; Vivienne Rakowsky; Keith Weaver
Subject: Ref: Morrison v Quest et al 'Meet and Confer' dated May 04, 2016

May 04, 2016:

Ms. Caldwell,
Ms. Rakowsky,
Mr. W eaver
This email is the first attempt to 'meet and confer' regarding the following:
Defendants are repeatedly sending Plaintiff voluminous documents from physicians from
ail over the country referring to a 'clinical laboratory report issued by Quest and its
subsidiaries on Tommy Morrison.
Defendants have now acknowledged in this lawsuit that a 'clinical laboratory report is not to
be used for a diagnosis and not to be used for treatment of any disease, including the
human immunodeficiency virus.
Plaintiff would therefore like to Inquire whether Defendants will be obtaining and sending Plaintiff, that
is in the custody, possession and control of all the physicians named by QUEST and HIATT, the
following:
*proof of isolation and purification and methodology used to identify and diagnose the human
immunodeficiency virus in the blood of Tommy Morrison;
*photo images of the human immunodeficiency virus in the blood of Tommy Morrison;
*all clinical laboratory testing for all other non-HIV-ailments by all physicians subpoenaed by QUEST
and HIATT which has not been included in the voluminous amount of documents;
* Dr.Schuchman II wound care notes and documentation of the 12 foot of surgical gauze left in the
chest of Tommy Morrison;
3

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physical and clinical examinations performed by each physician on Tommy Morrison;

symptoms of all medical conditions by all physicians in Tommy Morrison;
copy of subpoena served on Dr.Robert Voy , 1996, Las Vegas, Nevada;
copy of subpoena served on Charles Hood, author of the book as told by Dawn Brady, for
information on medical records belonging to Tommy Morrison that have been referenced and
included in this lawsuit, and published after his death. Including all information on all payments made
by Charles Hood ,and medical release forms received by, Charles Hood, authorizing the use of
medical records belonging to Tommy Morrison and the estate of Tommy Morrison to publish the book
and consequently be used in this lawsuit by QUEST and HIATT;
*UNMC 'aids' defining diseases upon the final blood draw of Tommy Morrison at death;
*UNMC photo images of the human immunodeficiency virus in the blood of Tommy Morrison upon
death;
Hepatitis 'C results from Quest in Las Vegas, Nevada, on February 10, 1996.
all blood draws by all physicians , and all laboratory reports authored by QUEST, for any and all
medical conditions between 1996 and 2013;
all manufacturer side effects of all medications prescribed by physicians during the course of
'treatment' of Tommy Morrison.
all test requisition forms completed by all physicians ,and received by each named QUEST
laboratory , or custodian of records, as listed on Defendants QUEST and HIATTS current witness
disclosure received by Plaintiff after April 5th, 2016;
all manufacturer packet inserts on all the 'HIV' testing performed on Tommy Morrison by all
physicians and all laboratories that have been served with a subpoena after April 5th, 2016.

Please respond by Thursday May 5th,12 noon, Las Vegas time, or Plaintiff must be obliged to
file a 'Motion to Compel' with the Court to obtain the above information that is in the
'possession, custody and control' of all physicians and ail clinical laboratories.
Thank you for your immediate attention.
PATRICIA HARDING MORRISON.