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-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: RENEWED MOTION TO ADD WITNESSES AND PERMIT TESTIMONY

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit Plaintiffs' Reply Re: Renewed Motion to Add Witnesses and Permit Testimony, and in support thereof, state as follows: I. BACKGROUND When plaintiffs filed the initial motion to add witnesses, the court ruled that plaintiffs had to show manifest injustice would result from not allowing addition of the witnesses, and that plaintiffs had not made that showing. The court denied the motion without prejudice. This provided another opportunity for plaintiffs to make the showing and gave implicit permission to refile the motion. The court has denied several of defendants' motions without prejudice. It is unlikely they will characterize their own renewed motions, including the one for trial in Grand Junction, as "a second bite at the apple." The same standard should be applied to all parties.

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The test for this motion, as articulated by the court, is whether manifest injustice will result from not allowing the testimony of the witnesses. Defendants repeatedly assert that plaintiffs should have disclosed the witnesses earlier, but that is not the test the court will apply. If prejudice were the test, untimely disclosure would be relevant. However, defendants knew about these witnesses all along and, therefore, even if that test were applied, no prejudice due to untimely disclosure exists. In support of the renewed motion, plaintiffs submitted substantial additional information for the court's review. Plaintiffs' counsel was able to interview two of the proposed witnesses and provided a summary of the information obtained. This information provides an idea of what the witnesses' testimony will be, and allows application of that testimony to the legal issues in the case. Defendants complain that an affidavit was not provided, but plaintiffs are not aware of any requirement that an affidavit be submitted; this is not a summary judgment motion. Plaintiffs' counsel have Fed. R. Civ. P. 11 obligations and a duty of candor to the court and accurately described the relevant portions of the witness interviews. This information provided is sufficient to demonstrate the importance of the witnesses' testimony and the manifest injustice that would result from not allowing it. Defendants' assertion that plaintiffs are misleading the court on the expected testimony of these witnesses is incorrect, and when considered carefully, is rather absurd. Plaintiffs provided the important parts of the testimony that they felt the individuals would provide, based on the interviews. Might there be additional information that is redundant with what others will say? There might be, but such information is irrelevant to the determination of this motion. Might

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these witnesses have information that does not help, or even harms, plaintiffs' case? They might, as few witnesses are ever completely one-sided. There are two additional problems with defendants' assertions. First, although defendants clearly interviewed Fender, they provide no detail on what they think was inaccurate about plaintiffs' summary of his expected testimony. This enhances the credibility of plaintiffs' summary. Second, it would be completely illogical for plaintiffs to have interviewed these individuals, found they would provide unfavorable testimony, and then to seek to add them as witnesses and mischaracterize their testimony as favorable in order to allow them to provide unfavorable testimony at trial. Once examined carefully, defendants' objections can be rejected as illogical. In regard to witness Twedell, he denied plaintiffs the opportunity to interview him. However, Dillon worked with Twedell and knows of the things that Twedell observed at the mine. Further, witnesses in similar circumstances to Twedell have been interviewed. This information allows for a reasonable estimate of what testimony Twedell might provide. While not as ideal as an interview, it was the best plaintiffs were able to obtain. II. Shawn Pfifer Defendants' arguments in regard to the testimony of Pfifer largely prove plaintiffs' point, and actually support allowing him to testify. Defendants argue that plaintiffs are mischaracterizing Pfifer's expected testimony, although it does not appear that they actually interviewed him. However, in support of their contention, they submit an affidavit of Stan Hopper, Warehouse Manager. Apparently, defendants are under the mistaken impression that an affidavit from a Mountain Coal manager turns an assertion into a fact set in stone. It does not.

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The jury will be making credibility determination and can decide that the testimony of Mountain Coal managers cannot be trusted. At most, the affidavit of Hopper raises a disputed issue of fact, which demonstrates why Pfifer's testimony is essential and why it would work a manifest injustice not to allow it. Because neither plaintiff worked in the warehouse, it is essential for them to call a witness who did work in the warehouse and who can counter the biased testimony of Hopper. Robin Richardson still works for Mountain Coal, and therefore his testimony is likely to be influenced by that of his boss, Hopper. Pfifer can provide neutral testimony about the warehouse position and what it entailed so that the jury can determine if it was a reasonable accommodation. For the record, plaintiffs' motion did not state that Pfifer would testify that there was a permanent night shift crew. It simply said night shift did not use equipment such as forklifts. The motion then said it would be a reasonable accommodation to allow Clawson to work night shift. If some workers only work days, and others work alternating days and nights, allowing Clawson to work just nights would be a reasonable accommodation. Defendants, in claiming that Pfifer's testimony would not be unique ignore many of the other issues addressed by Pfifer's potential testimony. First, it is unreasonable to suggest that management of the mine would serve as suitable alternate witnesses, and that their testimony would be redundant with that of plaintiffs. There are numerous disputed facts. Managements' story of what was going on at the mine appears substantially different from what the employees state, including the neutral employees. Pfifer was hired for the job to which plaintiffs assert Clawson was entitled under the ADA. As such, Pfifer will have a unique perspective on what Clawson could have expected had he been hired for the job. This is especially true in the area of

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training. The training issue is particularly important because Hopper testified at his deposition that he felt Clawson was physically capable of performing the job, but that he did not give Clawson the job because of alleged lack of computer skills. (Exhibit 1, Hopper Depo. p.31 l.2-8; p.33 l.23 - p.34 l.4). Clawson was qualified if he needed no more training than Pfifer, even if he simply needed training in other areas. Pfifer is also expected to testify that the reason warehouse personnel drove over rough roads was because the roads were not graded. With graders at the mine, grading the roads would have been another reasonable accommodation for Clawson. Defendants do not address this issue. Finally, defendants do not address the expected testimony about obtaining help when lifting, which is relevant to accommodation of Dillon by placing him in the warehouse. III. GREG FENDER Plaintiffs explained the nature of Fender's expected testimony and its importance, and defendants did not refute this. Although defendants decline to acknowledge the accuracy of plaintiffs' summary of his testimony, they also fail to contradict it, despite either speaking to Fender, or having someone speak to him. Defendants' attempt to show that Fender's testimony is merely duplicative misses the mark. First, defendants state that other "underground maintenance mechanics" have been listed as witnesses, so defendants "presume" their testimony will be duplicative. The problem with this presumption is that underground maintenance mechanic is an overarching category, consisting of numerous specific jobs. Simply because individuals are in the same generic job or pay category does not mean they are necessarily familiar with each others specific job duties. Due to the ADA requirement of showing qualification and ability to do specific jobs, plaintiffs must have

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testimony regarding the various maintenance mechanic positions. Furthermore, even though Fender is neutral, or even friendly to the defense, his testimony largely supports plaintiffs' theory of the case. From the list of management witnesses who supposedly can testify as to the maintenance mechanic positions, it is only fair that plaintiffs be allowed to present contrary witnesses. This will ensure that the jury hears all sides, and that the plaintiffs' theory is not drowned out by an overwhelming tide of management witnesses. IV. ANDY TWEDELL A. Dispute Over Witness Contacts

Defendants incorrectly accuse plaintiffs of making false and misleading statements to Twedell in order to "coerce" his cooperation. In fact, the letter, attached to plaintiffs' initial motion, is careful to avoid such statements. The letter aims to, and succeeds in, giving the correct impression that plaintiffs intended to use all means at their disposal to subpoena and call Twedell, and that the process would be simpler and easier if he cooperated. Plaintiffs intended to obtain the court's permission to call the witnesses and intended to call them in rebuttal, if appropriate. This was explained to defense counsel on July 12, 2005. (Exhibit 2). Plaintiffs' truthfully intended this and would be willing to seek an evidentiary deposition of Twedell, if that is what it takes to subpoena him. Defendants letter to plaintiffs, despite their contentions, purports to speak on behalf of Twedell and Fender. The letter does not "point out" anything; instead it makes demands of plaintiffs' counsel in regard to Twedell and Fender. The letter by its terms is written for the benefit of Twedell and Fender. Defense counsel has no right to demand anything from plaintiffs'

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counsel, which is not related to a client of defense counsel. The letter speaks on behalf of third parties, and inappropriately attempts to dictate plaintiffs' counsel's conduct with third parties. Lastly, defendants' description of Langrand's contact with Fender and Twedell does not alleviate plaintiffs' concerns that defense counsel is discouraging contact with plaintiffs and their representatives. It appears that Langrand, as an agent of defense counsel, was giving legal advice to unrepresented third parties. Using a non-lawyer to give legal advice, and the giving of such advise, both constitute questionable conduct. The message that Langrand gave the witnesses, along with his legal advice, gives the witnesses the implicit message that speaking to the plaintiffs is discouraged because Mountain Coal did not like it and because it would end up being irrelevant. Even an unintentional and implicit message that cooperation with the opposing party is discouraged is inappropriate. United States v. Peter Kieweit Son's Co., 655 F. Supp. 73, 76-78 (D. Colo. 1986). Having a layperson as an agent for defense counsel to convey the message simply increases the probability of discouraging cooperation, either out of ignorance of the rules, or through careless use of words. B. Need For Twedell's Testimony

Plaintiffs were unable to interview Twedell. However, as stated above, plaintiffs have a good understanding as to what Twedell's testimony might be, based upon the close working relationship Twedell had with Dillon and on the observations of others. Dillon worked with Twedell more than Fender, and from this it can be reasoned that Twedell has more details concerning Dillon's work. This is important because Dillon is alleging that he could have performed his job as lube man even without accommodation. It is undisputed that Twedell worked in the mine and worked as a maintenance mechanic. Thus, Twedell has vital

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information. Because there are multiple positions under the umbrella of maintenance mechanic, it is likely that Twedell has unique information, both on the jobs and on Dillon's abilities. Denying such testimony would constitute a manifest injustice to Dillon. V. THESE WITNESSES ARE IMPORTANT NEUTRAL WITNESSES These witnesses are important because they are neutral witnesses and will have an effect on the weight the jury gives their testimony. There are many factual disputes between the parties, and the testimony of neutral witnesses will assist the jury in resolving these disputes. The case cited by the defendants is not to the contrary. The case merely confirms that the jury is the sole arbiter of credibility, and that the courts will not attempt to recreate their thought process on appeal. Cannon Oil & Well Gas Serv., Inc. v. Evertson, 836 F.2d 1252, 1257 (10th Cir. 1987). However, the jury cannot judge a witness's credibility if the witness does not testify. Likewise, they cannot use a non-testifying individual to assist in assessing the credibility of others. Due to the numerous factual disputes, strenuously argued on both sides, the testimony of neutral witnesses is crucial to assist the jury in resolving the disputes. CONCLUSION Plaintiffs are renewing this motion to add witnesses, which was denied without prejudice by the court. Plaintiffs have provided additional information on the probable testimony of the witnesses and how that testimony relates to the claims in this case. The testimony is of critical importance to several disputed factual issues. This is in part because these are neutral witnesses, but more importantly, the witnesses were in unique positions and will able to assist the jury in resolving the factual disputes. It would work a manifest injustice to deny the plaintiffs the opportunity to call these witnesses. Wherefore, plaintiffs respectfully request the court grant

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plaintiffs' motion to add Twedell, Fender, and Pfiffer as witnesses, and to permit their testimony at trial. RESPECTFULLY SUBMITTED this 19th day of August, 2005.

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 19, 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

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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