Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MSK-MEH MICHAEL E. CLAWSON and JARED DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

PLAINTIFF'S REPLY RE: CLAWSON'S MOTION TO REVIEW TAXATION OF COSTS (DKT. NO. 477)

The plaintiff, Michael E. Clawson, through his undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit his Reply Re: Clawson's Motion to Review Taxation of Costs (Dkt. No. 477), and in support thereof, states as follows: I. A. DEPOSITION COSTS Transcription Costs

Defendants do not object to the transcription costs of the depositions of Scanlan, Hopper, Turpin and O'Connell. Thus, the $1,343.40 in costs related to those depositions should be awarded to plaintiff by the Court. Defendants do not object to a portion of the transcription costs of the depositions of defendants' experts, Anctil and Darnell. Defendants conceded that 25% of the total costs of $1,096.15, or $279.29 of the costs of these two experts, should be taxed. Defendants object to

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75% of the transcription costs, or $816.86. Defendants are looking for a strict proportional reduction to the costs associated with these transcription costs for time allegedly unrelated to Clawson's claim, e.g. related to the three unsuccessful plaintiffs. This argument ignores the fact that the courts have generally held against strict proportional reductions. See, e.g., Ross v. Buckeye Cellulose Corp., 764 F. Supp 1543, 1551-52 (M.D. Ga. 1991) (reducing award by 25% because only 6 of 13 plaintiffs were awarded damages), rev'd on other grounds, 980 F.2d 648 (11th Cir. 1993); Santiago v. Mercado, 175 F. Supp.2d 164, 169 (D. P.R. 2001) (reducing award by 50% because, inter alia, claims by 20 of 25 plaintiffs were dismissed at summary judgment). Defendants ignore the fact that certain fees, such as appearance fees and postage and handling fees, are charged to plaintiff regardless of the amount of plaintiffs involved in the litigation. These fees are not based on time spent in the deposition or amount of pages transcribed. The appearance fees for the court reporter amount to a total of $200.00 for both depositions of defendants' experts ($100 Darnell, $100 Anctil). Exhibit 4 ­ 1920(2) Costs, ref. nos. 100, 103. Each deposition transcript had postage and handling fees amounting to $12.00. Thus, $212.00 should be taxed to defendants as costs the plaintiff would have incurred regardless of the amount of plaintiffs in the case. Defendants' general reduction of 75% is not an accurate reflection of the pages transcribed from the deposition testimony related to Clawson's claims and that aided in his litigation. Approximately thirty-two pages from the deposition of Anctil are related to her general methodology, her experience with the ADA, and specific positions at the mine, such as Warehouse Technician. All of these areas are relevant to Clawson's case and were used by counsel in preparing for trial. As such Clawson is entitled to the costs of $110.85 related to

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transcribing the deposition testimony of these thirty-two pages at $3.45 per page.1 Approximately forty-one pages of Darnell's deposition directly relate to Clawson's case. Thus, Clawson is entitled to $141.45 related to transcribing the deposition testimony of these forty-one pages at $3.45 per page. Clawson should also recover the costs associated with exhibits from Anctil's deposition. The exhibits relate to relevant labor markets and a labor market access report which were used in preparing for the cross-examination of Anctil at trial. These exhibits cost $7.75. Clawson is entitled to costs exceeding defendants' conceded amount of $279.29 for the deposition costs of defendants' two experts. Clawson is at least entitled to an additional $192.76 above the conceded amount for a total of $472.05 related to transcribing the testimony of defendants' two experts. ($200.00 + $12.00 + $110.85 + $141.45 + $7.75 = $472.05). Thus, the court should award an additional $1,815.45 for transcribing the depositions of Scanlan, Hopper, Turpin, O'Connell, Anctil, and Darnell. ($1,343.40 + $472.05 = $1815.45). B. Deposition Witness Fees

As defendants do not object to the $80.00 for the deposition witness fees of Anctil and Darnell, the court should award these costs. C. Subpoena Fees for Expert Witness Depositions

As defendants do not object to the $69.00 for the subpoena fees for the depositions of Anctil and Darnell, the court should award these costs.

The apparent rate per page of transcription is $3.45. This was arrived at by dividing the total amount charged for transcription by the pages transcribed. (Darnell: $407.10 ÷ 118 pp. = $3.45. Anctil: $462.30 ÷ 134 pp. = $3.45.)

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II.

RULE 702 HEARING TRANSCRIPT COSTS

Clawson should receive the entire transcript fee for the F.R.E. 702 hearings regarding the admissibility of Brennan's expert opinions. Essentially, defendants blame plaintiffs for wasting time and the necessity of having multiple hearings. They also assert that the vast majority of Brennan's opinions were excluded. A review of the facts shows defendants' accusations to be false. The first hearing was held on April 6, 2005. This was the first time plaintiff's counsel had used the F.R.E. 702 hearing procedures of Judge Krieger. The court noted at the hearing that some judges do things differently. Admittedly, the hearing did not proceed entirely as scripted, but this was not due to any waste but to unfamiliarity with Judge Krieger's desired procedures. The court directed the parties to Wilson v. Merrell Dow Pharms., 893 F.2d 1149 (10th Cir. 1990) to assist in differentiating opinions from assumptions. Of particular note, the court stated that it was incumbent on the parties to narrow the issues in dispute; this takes coordination between the parties. At the April hearing, Brennan's qualifications were testified to, and this evidence was accepted by the court in later hearings. Therefore, important evidence was received at the first hearing. Prior to the second hearing, the parties were to identify Brennan's opinions and defendants were to identify their specific objections to those opinions. Plaintiffs' counsel

attempted to confer with defense counsel to narrow the issues in dispute by mutually identifying the opinions of Brennan. Specifically, by letters dated April 14 and 15, 2005, plaintiff's counsel provided a list of what were believed to be Brennan's opinions, as distinguished from assumptions, and asked defense counsel to identify any other opinions to which they objected.

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(Exhibit 13). Despite the court's direction that the parties narrow the issue, defense counsel responded by letter dated April 15, 2005, categorically denying any responsibility for identifying opinions, and stating this was solely plaintiff's responsibility. (Exhibit 13). Defense counsel stated a belief some of the opinions already listed were actually assumptions, but did not identify them. (Exhibit 13). Defense counsel's refusal to coordinate in narrowing the issues for hearing meant that Clawson was required to list every item that might be an opinion or risk inadvertently waiving the right to submit an opinion at trial for failure to list it. It is interesting to note that the current procedures of Judge Krieger for Rule 702 proceedings require conferral and coordination between counsel. At the August 25, 2005, hearing the list of opinions to be addressed was inflated, in part because of defense counsel's refusal to coordinate. If defense counsel had agreed that certain items were assumptions, there would have been no need to list them. While the court did take over the questioning of Brennan, this was for a short period, and was to assist in clarifying the distinction between his opinions and assumptions so that the hearing could concentrate on his opinions. Again, this would have been unnecessary if there had been conferral to narrow the issues. Most of the necessary testimony was presented at the first two hearings, although a third hearing was ultimately required. The court made oral rulings on October 31, 2005. Defendants state that the vast majority of Brennan's opinions were excluded. This is inaccurate. In actuality, the court determined that a large number of items listed as opinions were not opinion, but were either assumptions or factual assertions requiring a foundation at trial. While the court did find some of Brennan's opinions inadmissible, it is inappropriate to lump his underlying assumptions in with the

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excluded opinions when counting "opinions" that were excluded. Additionally, there were seven items that the plaintiff listed as opinions the court did not rule on at all, as they were not addressed in defendants' motion. The court ultimately permitted eight of Brennan's opinions, one of which was stipulated, many more items were categorized by Judge Krieger as assumptions and did not require ruling. The only basis for reducing the transcript costs put forth by defendants is the multiplicity of proceedings ultimately required, and the limited success achieved.2 Limited success may be a basis for reducing an award of attorney fees, but defendants cite no authority that it is a basis for reducing an award of costs. In regard to the multiple proceedings, defendants contributed to them as much as plaintiffs by refusing to participate in narrowing the issues in dispute. Defendants took the risk that their extreme defense would result in higher costs should they lose, and should not now be rewarded for their tactical choices. Clawson should be awarded the entire $218.29 in Rule 702 hearing transcript costs. III. PRETRIAL HEARING TRANSCRIPT COSTS

As defendants do not object to the $170.08 for the pretrial transcript costs, the court should award these costs. IV. A. COPY COSTS Copies for Trial

Defendants object to the $685.70 of the requested $953.54 related to copy costs for trial, defendants concede $267.84 of copy costs. Defendants point an accusatory finger at plaintiff for
Defendants mention in passing, in a footnote, that the transcript cost award could be reduced because Dillon was involved in the case. However, defendants present no request to this effect, no supporting argument or authority, and no suggestion as to how such a reduction should be calculated. Thus, the comment should be ignored. Furthermore, the opinions expressed by Brennan about Clawson are quite similar to the opinions expressed by Brennan about Dillon.
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"multiplying the trial exhibits in this case."

That finger should be pointed at defendants

themselves; plaintiff should not bear the increased costs caused by defendants in multiplying the exhibits in this case. Defendants and plaintiff had to come to terms on the number of exhibits for trial. This was not a one way street dictated by plaintiff. In fact, defendants insisted on hundreds of pages of medical reports related to Bartlett and Richards3 over the objection of plaintiff. (Exhibit 14, Transcript of June 15, 2005 Pre-Trial Conference, Page 17); (Exhibit 15, e-mail of June 24, 2005); (Exhibit 16, e-mail of July 7, 2005); and (Exhibit 17, e-mail of July 11, 2005). As a result defendants should bear the costs associated with copies related to Bartlett and Richards. Defendants unrelentingly defended their positions against Clawson and their conduct towards the witnesses Dillon, Bartlett, and Richards. This necessitated Clawson to include every record available related to his case. These records not only included medical and employment records directly related to Clawson and his injuries, but records of defendants' policies and practices, along with exhibits related to defendants as an integrated enterprise. If defendants would have been willing to admit or stipulate to more of the known facts of this case, Clawson would not have had to insist on so many records to support his case. The exhibits in this case fall into five distinct categories: Clawson, Defendants, Dillon, Bartlett, and Richards. Two of the five categories directly relate to Clawson's case: Clawson and Defendants Exhibits. Two of the three remaining categories were primarily insisted upon by defendants, over Clawson's objection, and defendants should bear a portion of those Bartlett and Richards exhibits costs. Defendants should have to bear at least half of the costs of the Bartlett

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Bartlett and Richards are two previously dismissed plaintiffs who testified at trial.

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and Richards exhibits because defendants insisted that numerous medical records be included as exhibits. This fifty percent (50%) figure is probably low because, in addition to defendants' insisted upon exhibits, many of these exhibits were relevant or potentially relevant to Clawson's claims depending on defendants' potential arguments at trial. In regard to the last remaining category, most of Dillon's exhibits were relevant to demonstrating a pattern of practice or to illustrate to the jury that defendants' treatment of Clawson was not isolated to only Clawson. Seven-tenths, or 70%, of the exhibits relate directly to Clawson's case or were included at the insistence of defendants, which they should bear those costs. At most three-tenths, or 30%,

related only to Dillon with no pertinence to Clawson's case or were insisted upon by plaintiff and not related to Clawson's case. Thus, Clawson should be awarded at least 70% of the costs, or $667.48, for trial copy exhibits not awarded by the Clerk of the Court. B. Outside Copying Costs

As defendants do not object to the $316.89 for outside copy costs related to Clawson's case, the court should award these costs. C. Total Additional Copy Costs

Clawson should be awarded additional copy costs amounting to $984.37 related to his case. ($667.48 + $316.89 = $984.37). Defendants concede an award of $584.73 for additional copy costs. ($267.84 + $316.89 = $584.73). V. CHECKMATE FEES FOR RUSH FILING SERVICES

Clawson did not request the checkmate fees for rush filing services in his Motion to Review Taxation of Costs. This fee is most appropriately sought under 42 U.S.C. § 1988 expenses, not under 28 U.S.C. § 1920 costs.

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VI.

TOTAL COSTS THAT SHOULD BE AWARDED TO CLAWSON

As the prevailing party, Clawson is entitled to costs under 28 U.S.C. § 1920, costs related to the successful litigation of his claims at trial. Clawson is seeking additional costs in the amount of $3,337.19, to the $9,403.02 awarded by the Clerk of the Court on April 27, 2007, pursuant to 28 U.S.C. § 1920. Defendants have admitted to the reasonableness of $2,628.65 in additional costs requested that were not awarded by the Clerk of the Court.

RESPECTFULLY SUBMITTED this 16th day of July, 2007.

s/ Damon Davis J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 FAX: (970) 242-8375 E-mail: [email protected] Attorney for Plaintiff Michael E. Clawson

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 16th day of July, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and, I hereby certify that I have mailed or served the document or paper to the following nonCM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant's name: Mr. Michael Clawson 38506 Back River Road Paonia, CO 81428 Mail

s/Damon Davis ___ J. Keith Killian, Esq. No. 9042 Damon Davis, Esq. No. 34323 Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 North 5th Street Grand Junction, Colorado 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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