Free Response to Motion - District Court of Colorado - Colorado

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

Document 364

Filed 08/17/2005

Page 1 of 7

I N THE UNITED S TATES D ISTRICT COURT FOR THE D ISTRICT O F COLORADO

Civil Action No. 01- cv- 02199- MSK- OES

MICHAEL E. CLAWSON and JARED L. DILLON,

Plaintiffs, vs. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants.

D EFENDANTS' R ESPONSE TO P LAINTIFFS' MOTION TO ACCEPT THE AFFIDAVIT OF DR . DONALD VOGENTHALER AS E VIDENCE IN O PPOSITION TO DEFENDANTS ' DAUBERT MOTION
Defendants, by their attorneys, Holland & Hart LLP, hereby submit this Response to Plaintiffs' Motion to Accept the Affidavit of Dr. Donald Vogenthaler as Evidence in Opposition to Defendants' Daubert Motion (Doc. #363), filed August 12, 2005. For the reasons set forth below, Defendants oppose Plaintiffs' Motion. I. INTRODUCTION

On March 18, 2005, Defendants filed their Motion in Limine to Exclude Opinion Testimony of Plaintiffs' Expert Witness Ronald J. Brennan (Doc. #288). By Order dated March 24, 2005 (Doc. #297), the Court ordered an evidentiary hearing for April

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

Document 364

Filed 08/17/2005

Page 2 of 7

6, 2005. A copy of the Court's Hearing Procedures for Daubert or Rule 702 Motions was attached to the Court's Order. Such procedures specifically contemplate the direct, cross, and re- direct examination of live witnesses. After an abortive Daubert/Rule 702 hearing on April 6, 2005, the Court directed Plaintiffs to reformulate and disclose their expert witness opinions, with Defendants to then articulate their objections to such reformulated opinions. The parties were also directed to provide an estimate of the time needed for a further hearing. The parties submitted their Joint Submission on April 21, 2005; in such Joint Submission, Plaintiffs stated that they intended to call Dr. Vogenthaler as a witness, estimating 30 minutes of direct examination and 30 minutes of cross-examination. Defendants estimated that Dr. Vogenthaler would testify for 30 minutes on direct (if allowed to testify at all) 1 and 15 minutes on cross.

1

Based upon the affidavit attached to Plaintiffs' motion, it would appear that Dr. Vogenthaler's testimony is of questionable relevance, at best. While Dr. Vogenthaler may arguably be competent to testify as to whether Mr. Brennan, in using a purchased computer program to calculate damages in this case, utilized principles and methods generally accepted by vocational economists, any testimony by Dr. Vogenthaler as to the other three areas of a Daubert challenge (lack of qualifications, insufficient facts or data, and unreliable application of principles and methods to the facts) would not be relevant or helpful to the Court. Plaintiffs (apparently) would have Dr. Vogenthaler "vouch" for Mr. Brennan and his reports (rather than his opinions, which are at issue here), without any indication that Dr. Vogenthaler has verified the accuracy of the underlying facts and data used by Mr. Brennan, or calculated Plaintiffs' economic losses himself. In short, Dr. Vogenthaler's testimony (which no doubt would substantially exceed Plaintiffs' 30- minute estimate) is of questionable relevance and would itself be subject to challenge on Daubert grounds, a tangent upon which the Court need not, and should not, embark in determining Defendants' Motion in Limine regarding Plaintiffs' expert Brennan.

2

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

Document 364

Filed 08/17/2005

Page 3 of 7

At the May 3, 2005 final trial preparation conference, the Court reset the Daubert /Rule 702 hearing for August 25, 2005 at 1:30 p.m., noting (based upon the parties' own time estimates) that at least three hours would be needed for the hearing. 2 II. ARGUMENT

Though the district court has discretion in how it conducts its gatekeeping function under Daubert, the Tenth Circuit has made clear that the district court has no discretion to avoid performing the gatekeeper function. Dodge v. Cotter Corp ., 328 F.3d 1212, 1223 (10th Cir. 2003), citing Goebel v. Denver & Rio Grande Western Railroad Co., 215 F.3d 1083, 1087 (10th Cir. 2000). The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated. Goebel, 215 F.3d at 1087. The district court must create a sufficiently developed record in order to allow the appellate court to determine whether the lower court has properly applied the relevant law. Id., at 1088 (citing cases). While recognizing that the district court has significant discretion in deciding how to perform its gatekeeping role, the Tenth Circuit has held that the district court abused its discretion by, inter alia, deciding such issues without the use of meaningful live witness testimony at a Daubert hearing. Dodge, 328 F.3d at 1228- 29 ("On the contrary, in this case, we fail to see how the Daubert issues could be reliably decided without a meaningful hearing, which of necessity depends upon the use of live witness testimony as opposed to attorneys' arguments."). See also Tuato v. Brown , 85
2

Subsequently, at the June 15, 2005 continued final trial preparation conference, the Court ordered that a further final trial preparation conference would also be held on August 25, 2005.

3

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

Document 364

Filed 08/17/2005

Page 4 of 7

Fed.Appx. 674, 677-78 (10th Cir. 2003)(not selected for publication)(copy attached hereto as Exhibit A)(held district court failed to conduct sufficient Daubert hearing where no live testimony taken from expert and no detailed findings made in record). In this case, in performing its gatekeeping function under Daubert , the Court has set an evidentiary hearing, which is to be conducted in accordance with its detailed hearing procedures that contemplate live witness testimony, including direct, cross, and re-direct examination. Defendants submit that it is fundamentally unfair to allow Plaintiff to offer the testimony of Dr. Vogenthaler in this case via affidavit and thereby deny Defendants the opportunity to cross- examine him. In their Motion, Plaintiffs have not shown any good cause why Dr. Vogenthaler's testimony should be taken via affidavit rather than in person at the evidentiary hearing. Plaintiffs suggest that Dr. Vogenthaler may be unable to testify, in whole or in part, at the hearing, but do not explain why such may be the case. On the one hand, if Plaintiffs are unable to present the testimony of Dr. Vogenthaler, together with their other witnesses at the Daubert /Rule 702 hearing (including, most importantly, their expert witness, Mr. Brennan, himself), within the time allotted by the Court (which was based upon the parties' own time estimates), this is a problem of Plaintiffs' own making. To put it bluntly, Plaintiffs should be required to organize and edit their presentation of evidence so as to fit within the time allowed by the Court. Plaintiffs should not be allowed to shoehorn their case into the time allowed by denying Defendants the opportunity to cross- examine one of their witnesses.

4

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

Document 364

Filed 08/17/2005

Page 5 of 7

On the other hand, if Dr. Vogenthaler is unable to testify on August 25 because he is unavailable on that date or at that time (it being unclear from Plaintiffs' motion whether that is the case), such does not constitute good cause to allow his testimony to be taken by affidavit. The August 25, 2005 Daubert/Rule 702 hearing was set on May 3, 2005, some three and one- half months in advance. If the August 25 date was bad for Dr. Vogenthaler, Plaintiffs could have moved for a continuance or sought leave to obtain his testimony by deposition, which would have allowed for cross- examination by Defendants. (O f course, it is now too late to do so.) Plaintiffs have not unequivocally stated that Dr. Vogenthaler is not available on August 25, or if he is unavailable, explained why such is the case given that the hearing was set long ago. If Dr. Vogenthaler is, in fact, unavailable on August 25, the witness's unavailability is Plaintiffs' problem, not Defendants', and it would be unfair to resolve such problem by allowing him to testify via affidavit, to the prejudice of Defendants. III. CONCLUSION

As shown above, it would be fundamentally unfair to allow Dr. Vogenthaler to testify at the Daubert /Rule 702 evidentiary hearing by affidavit, thereby denying Defendants the opportunity to cross- examine him. Plaintiffs have shown no good cause why such should be allowed, nor does any good cause exist. Therefore, Plaintiffs' motion should be denied.

5

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

Document 364

Filed 08/17/2005

Page 6 of 7

Dated: August 17, 2005

s/ Jeffrey T. Johnson Jeffrey T. Johnson Monique A. Tuttle Holland & Hart LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 (303) 295- 8000 ATTORNEYS FOR D EFENDANTS

6

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

Document 364

Filed 08/17/2005

Page 7 of 7

CERTIFICATE O F S ERVICE ( CM/ ECF)

I hereby certify that on August 17, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notificatio n of such filing to the following e- mail addresses: [email protected] [email protected] I am not aware of any non CM/ECF participants in this matter requiring service by other means.

s/ Jeffrey T. Johnson Jeffrey T. Johnson Monique A Tuttle Attorneys for Defendants Holland & Hart LLP 555 Seventeenth Street, Ste. 3200 Post Office Box 8749 Denver, Colorado 80201 Telephone: (303) 295-8000 Facsimile: (303) 295- 8261 E- mail: [email protected]

3438741_1.DOC

7