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

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

Document 365

Filed 08/18/2005

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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.

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 Motion to Accept the Affidavits of Dr. Melvin Fredlund as Evidence in Opposition to Defendants' Daubert Motion, and in support thereof, state as follows: Certification Pursuant to D.C.COLO.LCivR 7.1 Plaintiffs conferred with defense counsel on this issue on August 11, 2005, and again on August 17, 2005. Defense counsel indicated that defendants were opposed to the relief requested in this motion. 1. Currently a Daubert hearing on the admissibility of the expert opinions of Ron

Brennan is scheduled for August 25, 2005. As Mr. Brennan explained at his deposition, he utilizes a computer program created by Dr. Melvin Fredlund. (Exhibit 1, Deposition of Brennan,

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

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p.31 l.8 - p.32 l.17). Dr. Fredlund does not reside within the District for Colorado or within 100 miles of the place of the hearing. C.R.C.P. 45(b)(2). Dr. Fredlund has agreed to provide two affidavits explaining the basic functioning of the computer program and its reliability. The affidavits confirm that Mr. Brennan and his staff have been trained on the use of the program and have regularly received updates to the program. The affidavits are attached as Exhibits 2 and 3. 2. "Preliminary questions concerning the qualifications of a person to be a

witness . . . shall be made by the court . . . In making its determination it is not bound by the rules of evidence except those pertaining to privileges." F.R.E. 104. "When ruling on the admissibility of evidence, a court is not bound by the federal rules of evidence and may rely on hearsay and other reliable evidence." United States v. Demosthene, 326 F.Supp. 2d 531, 534 (S.D. N.Y. 2004) (relying on police reports to make and evidentiary ruling). Judges may rely on affidavits when making preliminary determinations on the admissibility of evidence. Notes of the Advisory Committee on Rules, Rule 104, subdivision (a). 3. The court has broad discretion in deciding how it will determine the reliability of

expert testimony. Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1171, 1176 (1999). The Federal Rules of Civil Procedure state that "[t]hey shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Fed. R. Civ. P 1. The court may consider these factors in deciding how to make a reliability determination under Daubert. See Parkinson v. Guidant Corp., 315 F.Supp. 2d 754, 756 FN 1 (W.D. Penn. 2004). Similar to the civil rules, the rules of evidence provide that "[t]hese rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence . . . ." F.R.E. 102.

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4.

Dr. Fredlund's affidavits provide important information on how the computer

program used by Ron Brennan operates, and some of the principles behind it. This information should assist the court in determining the reliability of Mr. Brennan's testimony. Use of Dr. Fredlund's affidavit in these circumstances is the most fair and inexpensive means of producing this information for the court. There should be no prejudice to the defendants by proceeding in this manner. The affidavits of Dr.Fredlund do not relate to Mr. Brennan's use of the program in this specific case; it addresses the fact that Mr. Brennan has received training in the use of the program, that he has received computer updates for the program, and that the program is reliable. Receipt of the affidavits will assist the court in its determination and best fulfills the purposes of the rules of civil procedure and the rules of evidence. 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 18th 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 18, 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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