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

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

Document 371

Filed 08/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-cv-02199-MKS-OES 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' REPLY RE: MOTION TO ACCEPT THE AFFIDAVITS OF DR. MELVIN FREDLUND AS EVIDENCE IN OPPOSITION TO DEFENDANTS' DAUBERT MOTION

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit their Plaintiffs' Reply Re: Motion to Accept the Affidavits of Dr. Melvin Fredlund as Evidence in Opposition to Defendants' Daubert Motion, and in support thereof, state as follows: 1. This motion is not identical to the motion submitted in regard to Dr. Vogenthaler,

as defendants seem to suggest. The main concern with Dr. Vogenthaler was timing. Originally, the August 25, 2005, hearing was scheduled only for the Rule 702 challenge to expert Ron Brennan. However, subsequently, the court ordered that argument on the remaining pre-trial issues are also to be addressed at the F.R.E. 702 hearing. This will take away from the time set aside for the taking of evidence on the Daubert issue. This is a concern in regard to

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Dr. Fredlund's testimony. In addition, Dr. Fredlund resides and does business in California, and thus is a distance of greater than one-hundred miles from the court and is unavailable for the hearing. Plaintiffs' counsel was only recently able to secure Dr. Fredlund's cooperation in this matter. 2. The affidavit will assist in the Daubert process. The Tenth Circuit has shown that

its primary concerns are with the court obtaining sufficient information to make a ruling, and with the court creating a record for review. Daubert does not require a hearing, so long as the record is sufficiently developed. United States v. Call, 129 F.3d 1402, 1405 (10th Cir. 1997). The district court may even rule on an objection during trial so long as it has "sufficient information." Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). In the Goebel case, once the Tenth Circuit remanded to the district court, the judge declined to hold a hearing and made detailed findings on the evidence already presented. Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987, 989 (10th Cir. 2003). The judge's decision was affirmed on appeal. Id. at 1001. In asking the court to accept the affidavit of Dr. Fredlund, plaintiffs are attempting to ensure that the court has sufficient information. Although plaintiffs did not initially intend to submit evidence from Dr. Fredlund, Tenth Circuit precedent calls for erring on the side of more information rather than less. Further, the availability of this information, and the creation of a record, seems to be more important than the exact means the information is submitted to the court. 3. The information provided by the affidavit will be relevant to the court's inquiry

and will not be prejudicial to the defendants. The affidavit confirms the accuracy of the software program and that the calculations it performs are those normally used by economists and other 2

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economic damages experts. Contrary to defendants' assertions, these equations are relatively straight forward, and it does not take an economics expert to perform them. Donatelli v. Unumprovident Corp., 350 F.Supp 2d. 288, 291 (D. Maine 2004). Therefore, the accuracy of the computer program and the training in the use of the program are relevant to the determination of defendants' Daubert motion. It is generally the experts' methodology that the court should look to in deciding a Daubert motion. Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003). This affidavit will assist the court in determining the reliability of Brennan's methodology in calculating the present value of past and future economic damages. 4. As Dr. Fredlund is explaining the basic principles behind the computer program

he designed, and stating his knowledge of Brennan's training and updating the program, there should be no prejudice to defendants in using an affidavit. If Dr. Fredlund were making statements as to Brennan's specific use of the program, or were verifying his conclusions, there might be a need for defendants to cross-examine him. Dr. Fredlund designed the computer program and has a PhD in economics, so there should be no controversy in regard to his statements about the functioning of the computer program. Also, Dr. Fredlund has kept track of the training of Brennan, and Brennan's updating of the computer program, so there can be no controversy about these statements. If defendants have questions about Brennan's specific use of the program, they can ask him at the hearing. 5. Accepting the affidavit of Dr. Fredlund helps fulfill the purpose of the rules of

evidence and civil procedure by assuring justice and fairness while decreasing cost and delay. F.R.E. 102; Fed. R. Civ. P. 1. The affidavit helps assure that the court has "sufficient

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information" to make a detailed ruling and a detailed record. No prejudice should come from accepting the affidavit. WHEREFORE, plaintiffs respectfully request that the court accept the affidavits of Dr. Melvin Fredlund and consider said affidavits in deciding defendants' motion to exclude the testimony of Ron Brennan. RESPECTFULLY SUBMITTED this 22nd day of August, 2005.

s/J. Keith Killian J. Keith Killian Joanna C. Jensen 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

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 22, 2005, 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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