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

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

Document 391

Filed 03/27/2006

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

PLAINTIFFS' MOTION TO ACCEPT LATE PROPOSED JURY INSTRUCTIONS

The plaintiffs, Michael E. Clawson, and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Motion to Accept Late Proposed Jury Instructions for consideration. CONFERRAL PURSUANT TO D.C.COLO.LCivR 7.1(A) Plaintiffs' counsel provided a copy of this motion to opposing counsel by fax on March 23, 2006, and requested a response by Tuesday, March 28, 2006. Defense counsel objects to the motion. I. THE COURT SHOULD EXERCISE ITS DISCRETION AND ACCEPT PLAINTIFFS' LATE PROPOSED INSTRUCTIONS Fed. R. Civ. P. 51(a) provides the court with the authority to establish a time prior to the close of evidence by which the parties shall submit requests regarding instruction of the jury. The court has exercised its discretion in this case. Initially the parties submitted a joint set of

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instructions on April 25, 2005. After additional issues arose, and the court made additional rulings, the court allowed the parties until December 31, 2005, to submit a revised set of instructions. This deadline was later extended to January 20, 2006, and the parties submitted a revised joint set of instructions on that date. While the court has discretion to establish a deadline for the submission of jury instructions, the court also has discretion to allow late submission of jury instructions pursuant to Fed. R. Civ. P. 51(a)(2)(B). The 2003 advisory committee comment to the rule state, "Subdivision (a)(2)(B) expressly recognizes the court's discretion to act on untimely requests." It is likely that this provision applies to proposed verdict forms as well. Cf. Ayuyu v. Tafabuel, 284 F.3d 1023, 1026 (9th Cir. 2002) (Rule 51's provision relating to failure to object apply to verdict forms as well as jury instructions). The court should not be overly strict in applying deadlines to the submission of jury instructions. A trial court's discretion to refuse a charge to the jury because it is untimely "should be sparingly and cautiously exercised." Wilson v. Farm Bureau Cas. Co., 275 F.2d 819, 822 (5th Cir. 1960) cited by Dalon v. Golden Lanes, 466 S.E.2d 368 (S.C. Ct. App. 1996). "[A]ppellate courts will be loath to rule out as untimely a request made before the jury retires." McGuire v. Davis, 437 F.2d 570, 571 (5th Cir. 1971). Due to the importance of instructing the jury correctly, the court should not be overly harsh in applying time limits to jury instructions. This Court stated that, "I prepare the jury instructions" and that "everything you [the attorneys] submit is a suggestion." (Transcript, Pretrial Conference of October 31, 2005, p.25-26. Additionally, appellate courts have stated that the purpose of Rule 51 is "to call the court's attention specifically to the parties' requests or objections that they may be considered before the 2

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jury is charged . . . ." Evansville Container Corp. v. McDonald, 132 F.2d 80, 84 (6th Cir. 1942). Plaintiffs are requesting that the court accept and consider three revised jury instructions, one new jury instruction, and a revised set of verdict forms. Submission of these instructions serves both this Court's purpose and the purposes of Rule 51. These submissions seek to provide a simpler, more comprehensive verdict form, and to provide more accurate instructions. By accepting these instructions for consideration the court will have additional, more accurate, suggestions for instructing the jury. The court will be able to consider these issues before charging the jury, and can determine whether these instructions, or substantially similar ones, need to be given. Accepting these instructions will have the secondary benefit of creating a clearer record for review, by demonstrating what the court considered and either accepted or rejected in instructing the jury. II. THE REASON THE COURT SHOULD ACCEPT THESE SPECIFIC JURY INSTRUCTIONS AND VERDICT FORMS A. Modification to Instructions Nos. 13 and 15

Plaintiffs' proposed modification to these two instructions is an attempt to accommodate defendants' objections. Defendants objected that plaintiffs' proposal for instruction number 13 on the definition of a qualified individual should not contain a statement about considering the employers' written description of the job. Defendants' objection to plaintiffs' proposal for instruction number 15, on the definition of essential functions, was that it was not strong enough in regard to considering any written descriptions of the employer. Upon further consideration, plaintiffs are willing to account for defendants' concerns in the proposals. Therefore, plaintiffs' modification of instruction number 13 removes the language regarding consideration of the 3

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employers' written job descriptions. (Exhibit 1 - Modified Instruction No. 13; Exhibit 2 "Redlined" Version of Instruction No. 13). 1 Plaintiffs have modified number 15 to state that the jury "must" consider the employers' written job description. (Exhibit 3 - Modified Instruction No. 15; Exhibit 4 - "Redlined" Version of Instruction No. 15). While not eliminating the areas of dispute, these changes should at least reduce them, as well as reducing the risk of reversible error. B. Modified Instruction No. 20

Instruction number 20 is entitled "QUALIFIED INDIVIDUAL[,] REASONABLE ACCOMMODATION - ASSIGNMENT TO A VACANT POSITION." Plaintiffs' proposal, as it currently stands, includes the statement that the position must be vacant within a reasonable time, and reasonable must be determined based on the totality of the circumstances. This is how the law was explained in Cisneros v. Wilson, 226 F.3d 1113, 1129, (10th Cir. 2000) and Boykin v. ATC/VANCOM of Colo., L.P., 247 F.3d 1061 (10th Cir. 2001). It is also consistent with this court's ruling on defendant's motion in limine seeking to exclude certain evidence regarding positions at Mountain Coal. (Transcript, Pretrial Conference of May 5, 2005, p.11-12). However, plaintiffs now recognize that the instruction does not adequately explain what time frame the jury is to consider, and supplies no limitation or guidance as to what a reasonable time means. This could lead to jury confusion, or even create an appealable issue. The critical time frame is clearly between the dates of maximum medical improvement (MMI), when indefinite physical restrictions were given by the treating physician, and the date of termination.
The redlined version allows the reader to see the changes in a document by marking them. The "redlined" instructions show changes to the jury instruction numbers. These are not new changes, but simply reflect the numbering on the last set of joint instructions submitted to the court.
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By the MMI date, both plaintiffs had requested accommodation, and both plaintiffs had reasonably stable work restrictions. Based on Cisneros and Boykin the jury should be looking at a reasonable time before MMI, and a reasonable time after termination. Additionally, Boykin creates an outside boundary of six months as a reasonable time. Therefore, any job openings six months beyond termination should not be considered by the jury. Finally, plaintiffs note that Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999) does not state that the employer must "know" that a job will become available within a reasonable time. It states that if an employer "reasonably anticipates" the position will become available, it may be considered vacant. Therefore, the jury instruction should not require the employer to "know" the position will become available. The attached proposed instruction shows the changes plaintiffs wish to make to instruction 20, which will properly inform the jury of the time period it is to consider. (Exhibit 5 - Modified Instruction No. 20; Exhibit 6 - "Redlined" Version of Instruction No. 20). The court should at least consider giving this instruction to ensure that the jury does not focus on an inappropriate time frame. B. Revised and Consolidated Verdict Forms

One of the defendants' chief complaints regarding plaintiffs' proposed verdict forms was that there were multiple forms for each plaintiff. Plaintiffs' position was that because the jury was deciding multiple issues in regard to each plaintiff, it made sense to have multiple verdict forms. However, plaintiffs recognize that there is room for disagreement on this issue. If the court desires to use one verdict form per plaintiff, it should not be limited to using the verdict forms proposed by defendants. Defendants' proposed forms resemble the confusing special 5

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interrogatories which the Ninth Circuit labeled as "the darling of the insurance industry." Ayuyu v. Tagabuel, 284 F.3d 1023, 1025 (9th Cir. 2002). Plaintiffs propose that attached verdict forms, one for Clawson, one for Dillon, and one on integrated enterprise, for the Court's consideration. (Exhibit 7). They provide the court with another suggestion as to what an appropriate verdict form might be in this case. C. Instruction on Proper Consideration of the 100% Healed Rule

While this is a disputed issue, there is evidence that Mountain Coal had in effect at the relevant time, a 100% healed rule, also known as a full release rule. Such a rule has particular significance in ADA cases because of the requirements of individualized assessment, and the inevitable negative effect such a rule will have on disabled individuals. Courts have held that such a rule is evidence that a company regards individuals as disabled. Courts have also held that such a rule is a per se violation of the ADA, conclusively demonstrating that there has been a failure to accommodate. On the other hand, the importance of such a rule can be exaggerated, especially in a juror's mind. No court has held that the mere existence of a 100% healed rule is sufficient to award money damages to any person to whom it has been applied. Due to the importance of this issue, and the potential confusion it may engender, plaintiffs simply want an instruction that informs the jury of the appropriate use of this evidence, should they find such evidence credible. (Exhibit 8 - Instruction On 100% Healed Policy). Because the instruction is legally accurate, and in accordance with the evidence which will be presented, it should be given in this case. "If the requested instruction in accord with the party's contention is consistent with the evidence in the case, it must be granted unless the subject matter has been adequately covered in the court's charge." Lind v. Aetna Cas. & Surety 6

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Co., 374 F.2d 377, 380 (5th Cir. 1967). The instruction is legally correct, as shown in the sources cited for the instruction. (Exhibit 8). The instruction is in accord with the evidence to be presented at trial. The instruction is presented in a concise and neutral fashion. Finally, the instruction provides the jurors with guidance on an issue it will be important for them to understand in reaching a conclusion. For these reasons the court should accept the late instruction and use it in instructing the jury. CONCLUSION Plaintiffs are requesting that the court accept these late submitted instructions. Plaintiffs would like the court to provide the same consideration in regard to the giving of these instructions as it will give the instructions submitted in the joint submission of January 20, 2006. Plaintiffs would also like the court to give these instructions and verdict forms to the jury, but do not expect the court to rule on that issue until such time as the court would normally rule on the jury instructions as a whole. RESPECTFULLY SUBMITTED this 27th day of March, 2006.

/s/ J. Keith Killian 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 Plaintiffs Michael E. Clawson and Jared L. Dillon 7

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 27, 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

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/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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