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Haytham, Thank you for your comments. “Beyond cavil” means “beyond
dispute” – to keep it simple, I’ll change it to the
latter. We will not be able to get an affidavit from Flanagan along the lines
you suggest. In fact, he disputes that he said anything to Bill
Slater. It is one of the challenges of the case. On the one hand,
the Plaintiff has filed a verified pleading (i.e., the Amended Complaint) alleging
that Flanagan told Bill that the Plaintiff was dangerous and may have a gun. The
Plaintiff based this allegation on a privileged email that Larry Carver gave to
Plaintiff’s counsel. In that email, Bill said that Flanagan was the
source of the statement he made to the VA police officer. (Incidentally,
we got a protective order to preclude the Plaintiff from using the privileged
email.) The Plaintiff used that information to amend his complaint and
add Flanagan as a defendant. In the amended complaint, the Plaintiff
alleges that Flanagan told Slater that the Plaintiff was dangerous and had a weapon,
gun, and/or AK-47. Subsequently, Plaintiff’s counsel got an
affidavit from Flanagan in which, among attesting to other things, he denies
saying anything along those lines to Bill. The Plaintiff then voluntarily
dismissed the claim against Flanagan, now taking the position that Flanagan did
not say those things to Slater. (Flanagan’s affidavit is attached
to the Plaintiff’s Notice of Voluntary Dismissal.) For your
reference, the Plaintiff’s Amended Complaint, the Notice of Voluntary
Dismissal, and Flanagan’s affidavit are in the pleadings we sent you. It
is our position that the fact that Flanagan made the statement to Slater is a
judicial admission that the Plaintiff is estopped to deny because the Plaintiff
verified this fact in his Amended Complaint (albeit on information and belief).
We anticipate that this will be part of our summary judgment reply brief, as we
expect the Plaintiff to attach Flanagan’s affidavit to his response. We
also intend to file a motion in limine on this point in anticipation of
trial. In addition to the judicial admission point, we may also assert
the “mend the hold” doctrine in light of the fact that the
Plaintiff used the assertion that Flanagan made the statement in order to
obtain leave to file his Amended Complaint. I am happy to discuss this further
with you if you are interested. We did request all documents relating to the Plaintiff’s military
record. (See Request No. 10.) He responded that he does not maintain any
such records. If you think it may be helpful, you could make a FOIA
request for his military record. It is my understanding that through a
FOIA request you can get name, service number, rank, dates of service, awards
and decorations, and place of entrance and separation. I agree that the
conversation with Adrowski at the truck is odd. Among other things, the
chit-chat that the Plaintiff testified about, as well as the fact that Adrowski
escorted the Plaintiff back into the building to go through his desk a second
time, suggest that Adrowski had no concerns about the Plaintiff actually having
an AK-47 in his car. We will be pulling the appendix of exhibits
to the summary judgment brief together in an effort to get the motion on file
today. I welcome any additional comments on the brief or Bill’s
affidavit. Kevin From: Haytham Faraj
[mailto:haytham@puckettfaraj.com] Kevin, This is very well
written. It’s comprehensive in its coverage of the issues. Well
done! I only have a couple of comments. at page 12 2nd
Paragraph under E, you say “it is beyond cavil.” Not sure
what cavil means. Also, is it possible to get an affidavit from Noel
Flanagan regarding the statement to Bill Slater. The reason I wanted
to take a look at Cynowa’s military record and DD-214 is because of
statements he made in his deposition that raised serious doubts in my mind
about his service. 1) The term MOS is burned into the memory of
service members. It stands for military occupational specialty. He
said it stands for “method of service” Depo. P. 37, line 20.
The reason people know and remember that term is because you spend the first
few weeks and sometimes months of your military life competing to get the MOS
you desire. And you spend the rest of your military career working to
remain competitive and relevant in your MOS. There is no way someone
would forget what that stands for. Also the entire exchange at the truck
with officer Androwski is odd. Most Marines who come across another
Marine would engage in conversation about a) the MOS they had; b) the units
they served in; c) the locations and dates they served. Of course he did
not serve in the Marine Corps –he served in the Army- yet he has a Marine
Corps sticker on his truck. 2) He says he may have fired an AK-47 in boot
camp. Boot camp is not a memory that is easily forgotten even with the
passage of time. Neither the Army nor the Marine Corps fire soviet (in
1985) weapons in their basic training. I went to boot camp in 1986. I, as
well as my friends from boot camp, have specific memories and details from boot
camp. I remember the day when I first fired a weapon and my time on the
rifle ranges. Mr. Cynowa says he did not compete Marine Corps boot
camp. I have some doubts about whether Mr. Cynowa completed any full term
of service in the military at all. From: Kevin Duff
[mailto:kduff@rddlaw.net] Lisa, Bill, and Haytham, Attached are: (i) the summary judgment
brief along with (ii) an affidavit for Bill Slater. Please let me know
any comments you have as soon as possible. Ideally, I would like to file
the motion tomorrow. Please note that we are subject to a
15-page limit on the brief. Kevin Kevin B. Duff Rachlis Durham Duff & Adler, LLC phone: 312-733-3390 fax: 312-733-3952 mobile: 312-218-8620 RACHLIS DURHAM DUFF & ADLER, LLC
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