Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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

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Filed 04/05/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-02199-MSK-MEH

MICHAEL E. CLAWSON and JARED L. DILLON, Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC. Defendants.

JOINT MOTION REQUESTING THE GIVING OF CERTAIN JURY INSTRUCTIONS AT THE START OF TRIAL The parties, by their respective counsel, hereby jointly move the Court to give certain jury instructions at the start of the trial. As grounds for this joint motion, the parties state as follows: 1. The parties are in agreement that certain preliminary instructions should be given

to the jury at the start of the case. The parties are largely in agreement on which instructions should be given. In a case of the length and complexity of this one, the jury should have some idea of what it is they are looking for and what facts they will be trying to find when they finally start deliberating. This is particularly important in an ADA case as most jurors have heard of the ADA, but few are aware of what it actually requires. While not a replacement for comprehensive final instructions, a few preliminary instructions will help the jury understand the

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facts of the case and will avoid jury confusion. The parties would suggest that the instructions be given after jury selection, but before opening statements. I. 2. PRELIMINARY INSTRUCTIONS THE PARTIES AGREE UPON The parties, after having conferred on the subject, have agreed that certain

instructions should be given at the beginning of the case. The agreed upon instructions are as follows: 1) Statement of the Case; 7) Disability Under the ADA - Generally; 9) Disability Under the ADA - Regarded as Disabled - Definition; 13) Qualified Individual - Definition; 15) Qualified Individual - Essential Function - Definition; 17) Qualified Individual - Reasonable Accommodation - Definition;1 28) Elements of ADA Claims - Failure to Accommodate - Both Plaintiffs; and 29) Elements of ADA Claims - Discriminatory Discharge - Dillon Only. 3. Although the parties have agreed that these instructions are appropriate as

preliminary instructions, they have not resolved the other disputes they have in regard to the instructions. Both sides still wish their version of the instructions to be given, and both sides maintain their objections to the opposing party's version. This includes plaintiffs' recently revised and submitted instructions numbers 13 and 15, and defendants' objections thereto. The parties would request that objections in regard to preliminary instructions be resolved prior to trial, and believe only these instructions need be resolved prior to trial.

By agreeing that Instruction No. 17 may be given as a preliminary instruction, Defendants do not waive their contention that an employer does not have a duty to accommodate an employee who is merely "regarded as" disabled. Defendants acknowledge that the Court has ruled to the contrary in this case and that, subsequent to the Court's summary judgment ruling, the Tenth Circuit, in Kelly v. Metallics West, Inc., 410 F.3d 670 (2005), has also so ruled.

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II.

DEFENDANTS' PROPOSED ADDITIONAL PRELIMINARY INSTRUCTION Defendants propose that instruction number 6, Disability Under The ADA - Term

4.

of Art, be given as a preliminary instruction. Defendants anticipate that the term "disability" or "disabled" will be used frequently in this case, but in a variety of contexts, such as under the ADA, but also in connection with short-term disability, long-term disability, and workers' compensation. The term may have different meanings, or apply different standards, depending on the context. Especially in a "regarded as" case such as this, such an instruction is necessary to avoid jury confusion, and the resulting potential undue prejudice to defendants. 5. Plaintiffs continue to object to the giving of this instruction for the reasons cited

in the submission of joint jury instructions: namely, that there is an overlap between the definitions of disability in other contexts, and the definition of disability under the ADA. The jury should not be misled into believing such definitions are mutually exclusive. Additionally, and perhaps more importantly, the instruction mentions several collateral sources. The jury should not be led to believe plaintiffs have already been compensated, especially at the beginning of the case. The instruction specifically mentions social security and long term disability. There is no evidence that either plaintiff received social security benefits. Further, any reference to long term disability has been excluded by order of the court pending some demonstration of relevance. Even if the instruction is given, it will prejudice the plaintiffs to have the jury's attention called to several collateral sources at the beginning of the case. III. 6. PLAINTIFFS' PROPOSED ADDITIONAL PRELIMINARY INSTRUCTION In addition to the agreed upon preliminary instructions, plaintiffs also propose that

instruction number 30, Integrated Enterprise - Generally, be given to the jury as a preliminary

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instruction. Just like discrimination under the ADA, integrated enterprise is one of the issues to be decided in the case. Therefore, if the elements of discriminatory discharge and failure to accommodate are going to be given, so too should the elements of integrated enterprise be given. Giving this as a preliminary instruction ensures that the jury has an idea of why they are hearing information about Arch Coal, Inc. and Arch Western Resources, LLC. Far from highlighting one aspect of the case, giving instruction number 30 ensures that all aspects of the case receive some coverage in the preliminary instructions. While the parties disagree about some aspects of this instruction, the disagreement is less than the disagreement over instructions numbers 13 and 15. Additionally, there is no agreement at all in regard to instruction number 6, yet defendants propose it as a preliminary instruction. Instruction number 30 should be given as a preliminary instruction so that the jury has the same initial guidance on the integrated enterprise issue as they do on the other claims. 7. Defendants oppose the inclusion of instruction number 30 as a preliminary instruction.

The parties are in sharp disagreement regarding the substance of instruction number 30. Further, instruction number. 30 must be read together with the explanatory instructions which follow, numbers 31-34. Plaintiffs' contention regarding the integrated enterprise issue is adequately explained in instruction number 1, the Statement of the Case. Therefore, Defendants object to including instruction number 30 as a preliminary instruction. CONCLUSION Both parties agree that preliminary instructions should be given to the jury. These instructions will help prevent jury confusion and increase the jury's understanding of the evidence. The jury should still be instructed not to make up its mind until after hearing all of the

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evidence and all of the instructions. However, with the proper cautionary instruction, giving select preliminary instructions will aid the jury in making its findings. For these reasons the parties respectfully request that the court give preliminary instructions to the jury and resolve objections in regard to these instructions prior to trial. RESPECTFULLY SUBMITTED this 5th day of April, 2006.

s/J. Keith Killian J. Keith Killian Damon Davis Killian, Guthro & Jensen, P.C. P.O. Box 4859 Grand Junction, CO 81502 (970) 241-0707 ATTORNEYS FOR PLAINTIFFS

s/Jeffrey T. Johnson Jeffrey T. Johnson Monique A. Tuttle Holland & Hart, LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, CO 80201-8749 (303) 295-8000 ATTORNEYS FOR DEFENDANTS

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 5, 2006, 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 non CM/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 Mr. Jared Dillon 35404 Back River Road Hotchkiss, CO 81419 Mail

Mail

s/ J. Keith Killian J. Keith Killian Attorney for Plaintiffs Killian, Guthro & Jensen, P.C. 225 N. 5th Street Grand Junction, CO 81501 Telephone: (970) 241-0707 Fax: (970) 242-8375 [email protected]

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