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

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

Document 362

Filed 08/11/2005

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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 AFFIDAVIT OF DR. DONALD VOGENTHALER 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 Affidavit Of Dr. Donald Vogenthaler 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. Defense counsel indicated that defendants were opposed to the relief requested in this motion. 1. Current a Daubert hearing on the admissibility of the expert opinions of

Ron Brennan is scheduled for August 25, 2005. At this hearing plaintiffs hope to call Dr. Vogenthaler to testify in support of Mr. Brennan, specifically on the appropriateness of a vocational expert testifying as to damages and that Mr. Brennan used appropriate and

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

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reliable methods and techniques. However, because of other issues that have arisen since the hearing was scheduled, it is not clear that there will be adequate time for Dr. Vogenthaler to testify, or complete his testimony. Plaintiffs thus request that the court consider Dr. Vogenthaler's affidavit as a supplement to his testimony at the hearing. Alternatively, plaintiffs request that it be considered in lieu of his testimony in the event Dr. Vogenthaler is unable to testify at the hearing. Dr. Vogenthaler's affidavit is attached as Exhibit 1. 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

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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. 4. Plaintiffs submit that justice and fairness require that plaintiffs be allowed

to defend their expert and to submit evidence supporting his qualifications and the admissibility of his testimony. In the event the hearing cannot be completed, or all evidence cannot be produced at the hearing, the use of affidavits will best promote justice and fairness and best avoid unnecessary expense and delay. WHEREFORE plaintiffs respectfully request that this court accept the affidavit of Donald Vogenthaler, submitted in support of the admissibility of the testimony of Ron Brennan, and that the affidavit serve as a supplement to his testimony at the August 25, 2005, hearing, or in lieu of his testimony should he be unable to testify. RESPECTFULLY SUBMITTED this 11th 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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Case 1:01-cv-02199-MSK-MEH

Document 362

Filed 08/11/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 11, 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 nonparticipant'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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