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

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

Document 366

Filed 08/19/2005

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable M arcia S. Krieger Case No. 01-cv-02199-M SK-OES M ICHAEL E. CLAWSON, and JARED L. DILLON, Plaintiffs, v. M OUNTAIN COAL COM PANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C. and ARCH COAL, INC., Defendants. ______________________________________________________________________________ ORDER DENYING MOTION TO PRES ENT EVIDENCE BY AFFIDAVIT AT RULE 702 HEARING _____________________________________________________________________________ This matter comes before the Court on the Plaintiff' M otions ( #362 ) and (# 363 ) s seeking to submit an affidavit in lieu of live testimony or to supplement the testimony of Dr. Donald Vogenthaler at a Rule 702 hearing scheduled for August 25, 2005. The Defendants oppose the request in their Response (#364). Having reviewed the M otions and Response, the Court finds that no good cause exists for receiving testimony by affidavit. The M otions suggest that the witness may not be present for the hearing. If he is present, the proposed affidavit would supplement his testimony. This hearing has been long set and counsel have been aware of the Court' procedures for s

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

Document 366

Filed 08/19/2005

Page 2 of 2

the hearing which requires the presentation of evidence through live testimony. If the anticipated witness is unavailable, the Federal Rules of Civil Procedure provide that the testimony can be preserved by deposition. If the witness is available, he will testify in person. The Court has deferred to the time requested by the parties for the hearing and therefore expects that it will be sufficient for presentation of the evidence necessary to resolve the discrete issues arising under F.R.E. 702. IT IS THEREFORE ORDERED that Plaintiff' M otions ( #362 ) and (# 363 ) are s DENIED. DATED this 19th day of August, 2005. BY THE COURT:

M arcia S. Krieger United States District Judge