Free Response to Motion - District Court of Colorado - Colorado

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

Civil Action No. 01- cv- 02199- MKS- 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 ' RENEWED MOTION TO ADD WITNESSES AND P ERMIT TESTIMONY
Defendants, by their attorneys, Holland & Hart LLP, hereby submit their response to Plaintiffs' Renewed Motion to Add Witnesses and Permit Testimony ("Plaintiffs' Renewed Motion")(Doc. # 353), filed July 15, 2005. For the reasons set forth below, Plaintiffs' Renewed Motion should be denied. I. INTRODUCTION

Of course, Plaintiffs have already had a first bite at the apple as to these issues, having filed their Motion to Add Witnesses and Permit Testimony (the "Original Motion")(Doc. # 313) on April 11, 2005, seeking to add five witnesses. The Original Motion was fully briefed by the parties and argued at the June 15, 2005 continued final trial preparation conference. By its oral ruling from the bench, the Court denied Plaintiffs' Original Motion, without prejudice. The

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Court found that Plaintiffs had been aware of the additional witnesses, but had not timely disclosed them, and moreover, based upon the record before the Court, Plaintiffs had not provided an adequate justification for having failed to do so. Transcript, at 15-16 (copy attached hereto as Exhibit A). Rather, the Court found that Plaintiffs' trial preparation had waited until the last minute before trial. Id. at 16. Additionally, the Court found that "the record does not show that the testimony of the designated individuals is so essential to the plaintiffs' case that the failure to allow the amendment at this time would constitute manifest injustice. And that is the standard for amendment of a final pretrial order." Id. See also Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1210-12 (10th Cir. 2002); Koch v. Koch Industries, Inc., 203 F.3d 1202, 1222-23 (10th Cir. 2000). Plaintiffs now renew their Original Motion, seeking once again to add three (of the original five) witnesses, Shawn Pfifer, Greg (Hodge) Fender, and Andy Twedell. II. A. ARGUMENT

Plaintiffs Have Presented No New Information That Could Not, And Should Not, Have Been Presented In Their Original Motion Plaintiffs' Renewed Motion is nothing more than an attempt at a second bite at the apple.

Plaintiffs have presented nothing that they could not, and should not, have presented previously. The only difference in Plaintiffs' Renewed Motion is that Plaintiffs have finally spoken to two of the three witnesses who they propose to add. This is something they should have done long ago, before filing the Original Motion. Yet, Plaintiffs still offer no good excuse for why they failed to disclose these witnesses in their Rule 26(a) disclosures and failed to list them in the Pre-Trial Order. Plaintiffs' failure to do so is especially indefensible given that they continue to maintain that these witnesses are "essential" to proving Plaintiffs' case.

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B.

Plaintiffs' "Neutral Witness" Theory Is Without Merit The lynchpin of Plaintiffs' argument is that these witnesses are "neutral" witnesses (i.e.,

they are former employees who are neither "aligned" with the employer nor the plaintiffs) and that, therefore, their testimony is unique and essential. However, Plaintiffs' theory finds no support in the case law from either this circuit or district. See Cannon Oil & Gas Well Service, Inc., v. Evertson, 836 F.2d 1252, 1256-57 (10th Cir. 1987)(rejecting argument that jury necessarily assigned greater credibility to "independent" witness). In point of fact, every witness has certain interests, motives, and biases which may affect their credibility. That these persons no longer work for Mountain Coal is but one factor among many that a jury would have to assess in determining their credibility. For example, a former employee may have been terminated for cause or, on the other hand, may have voluntarily resigned to seek other employment. A former employee may have been a good employee, who got along well with his co-workers and management, or, on the other hand, may have been a poor employee, who failed to get along well with co-workers or management, and had a lengthy disciplinary record. Further, a witness may have biases for or against a party wholly apart from the fact that they do not currently work at Mountain Coal. For example, a witness could be personal friends with one of the Plaintiffs, or even related to them. The possibilities are nearly endless. In short, Plaintiffs' suggestion that these witnesses are neutral and unbiased merely because they no longer work for Mountain Coal, and that, therefore, their testimony is unique and essential, is without merit and should be rejected by the Court.

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C.

Plaintiffs Have Failed To Show That "Manifest Injustice" Will Result If The Pre Trial Order Is Not Modified 1. Shawn Pfifer

Pfifer was the person selected for the vacant warehouse position in August 1999 which was also sought by Plaintiff Clawson. Clawson has been aware of Pfifer's identity since that time. Further, Clawson discussed Pfifer and his qualifications during his deposition in this case, taken April 30, 2002. See Clawson Deposition, at 140:4-142:12; 146:6-147:11; 153:20-154:11 (a copy of these deposition excerpts is attached hereto as Exhibit B). Despite having long been aware of Pfifer's identity, Plaintiffs still have offered no explanation as to why Pfifer was not included in Plaintiffs' disclosures or listed in the Pre-Trial Order. In their Renewed Motion, Plaintiffs purport to describe Pfifer's potential testimony. Of course, this is merely Plaintiffs' characterization of such testimony; Plaintiffs fail to submit any sworn affidavit from Pfifer himself. Defendants believe the summary of Pfifer's proposed testimony is incomplete and misleading. As only one example, Plaintiffs suggest that Clawson could have worked the night shift in the warehouse because forklifts and front-end loaders were not used during that shift. However, there was no night or graveyard-only shift to which Clawson could have been assigned; some of the warehouse employees were assigned to rotating shifts, meaning that a warehouse technician would work days for a period of time, then nights, and others were assigned to straight day shifts, but none were assigned to straight night shifts. Further, contrary to Plaintiffs' suggestion, from time to time, even employees working on the night shift were called upon to use forklifts and front-end loaders to receive and unload emergency deliveries of parts and supplies. See Affidavit of H. Stanley Hopper, attached hereto as Exhibit C; Deposition of Harrison Stanley Hopper, dated October 18, 2002, at 17:14-19:8,

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excerpts attached hereto as Exhibit D. This is but one example of the half-truths and distortions contained in Plaintiffs' descriptions of the witnesses' testimony. That issue aside, Pfifer's testimony cannot be said to be unique or essential. Plaintiffs have already listed a number of witnesses who can testify regarding the wareho use. This would include Hopper, the Mountain Coal Warehouse Supervisor, as well as Robin Richardson, a warehouse technician. There would appear to be no reason why they could not testify as to the same matters as Pfifer, including as to the operation of the warehouse and the job duties and responsibilities of a warehouse technician. In addition, there are a number of other management officials who have knowledge of the warehouse, including Gene DiClaudio (the former President and General Manager), Pete Wyckoff (formerly Operations Manager, now General Manager), Ed Langrand (Human Resources Manager), Bill Olsen (Safety and Health Director), and Steve O'Connell (Maintenance Trainer). Given all of these witnesses who are already on the witness list, rather than being unique or essential, Pfifer's testimony would appear to be cumulative, and therefore, unnecessary. Thus, not allowing Plaintiffs to amend the Pre-Trial Order to add Pfifer to their witness list would not result in manifest injustice, and therefore, Plaintiffs' Renewed Motion should be denied. 2. Greg Fender

Fender worked as an Underground Maintenance Mechanic on Plaintiff Jared Dillon's crew, and therefore, Dillon has known his identity since at least April 1999, when Dillon was injured. Further, Dillon specifically mentioned Fender during his June 26, 2002 deposition in this case, at 55:24-56:2 (a copy of this deposition excerpt is attached hereto as Exhibit E).

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Again, Fender's proposed testimony is characterized by Plaintiffs rather than being supported by an affidavit from Fender himself. However, even taking Plaintiffs' characterization of Fender's testimony as accurate (which Defendants dispute), Fender's testimony cannot be said to be unique or essential to Plaintiffs' claims. Once again, Plaintiffs already have listed a number of persons who worked as Underground Maintenance Mechanics, the position held by Plaintiff Dillon. Aside from Dillon himself, Plaintiffs have listed Travis Ballard, who also worked on Dillon's crew. Again, Plaintiffs have not explained what Fender would say that Ballard could not regarding the job duties and responsibilities of an Underground Maintenance Mechanic. Further, Plaintiffs have listed a number of other Underground Maintenance Mechanics as witnesses, including ex-plaintiffs John Bartlett and Tom Richards, as well as Bart Rolf and Gary Morford. Presumably, each of these witnesses can testify as to the job duties and responsibilities of an Underground Maintenance Mechanic. Further, a number of company officials have been listed who can also address this issue, including DiClaudio, Wyckoff, Langrand, Olsen, O'Connell, Kevin Jensen (Maintenance Superintendent), Bob Turner (Maintenance Supervisor), and Dan Minerich (Maintenance Supervisor). Given this already lengthy list of witnesses, the testimony of Fender is cumulative at best, and therefore, unnecessary. Thus, not allowing Plaintiffs to amend the Pre-Trial Order to add Fender to their witness list would not result in manifest injustice, and therefore, Plaintiffs' Renewed Motion should be denied.

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3.

Andy Twedell

Similar to Fender, Twedell also worked as an Underground Maintenance Mechanic on Dillon's crew. Dillon specifically mentioned Twedell during his deposition in this case, taken on June 26, 2002, at 97:10-13 (a copy of this deposition excerpt is attached hereto as Exhibit F). However, Plaintiffs' argument for the addition of Twedell as a witness is even weaker, as Plaintiffs still have not spoken to Twedell and still do not know what his testimony would be. In their Renewed Motion, Plaintiffs suggest that counsel for Defendants discouraged Twedell from talking to them. Such an allegation is wholly without basis, and simply untrue. As set forth in the letter dated July 11, 2005 to Keith Killian from Jeffrey T. Johnson, attached to Plaintiffs' Renewed Motion as Exhibit 1, Defendants learned that Plaintiffs had contacted Twedell by letter (a copy of which was attached to Johnson's July 11, 2005 letter and attached to Plaintiffs' Renewed Motion as Exhibit 2). In such letter, in an effort to coerce Twedell into cooperating, Plaintiffs made certain false and misleading statements regarding their ability to call, and to subpoena, Twedell as a witness. In response, Defendants wrote to Plaintiffs' counsel pointing out their improper conduct and demanding that such threats and misrepresentations cease. 1 In a remarkable display of chutzpah, Plaintiffs responded, by letter dated July 12, 2005 to Johnson from Killian, copy attached hereto as Exhibit G, accusing Defendants of misconduct, accusations which are wholly without basis. At the same time, Defendants, through Langrand, the Human Resources Manager of Mountain Coal, contacted both Fender and Twedell and informed them of the status of the case

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Defendants also learned from Fender that counsel for Plaintiffs, in a telephone message, made similar threats and misrepresentations to Fender.

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and of their rights as non-party witnesses. Langrand told them that Plaintiffs had tried to add them (and others) to their witness list for trial in this case; that on June 15, the Court denied Plaintiffs' motion to do so; and that, as matters now stood, they were not on the witness list, and therefore, Plaintiffs could not subpoena them, unless and until the Court ruled otherwise. Further, as to Twedell, Langrand informed him that Plaintiffs could not subpoena him for trial in any event, since he resides in Price, Utah, which is more than 100 miles outside the District of Colorado. Finally, Langrand told both of them that it was up to them whether or not to talk with Plaintiffs' counsel. They were free to talk with Plaintiffs' counsel if they wanted to, but if they did not want to talk with them, they did not have to; the decision was entirely up to them. Langrand only asked that, if they decided to talk with Plaintiffs' counsel, they tell the truth, as best they could now recall the events in question, which took place many years ago. Thus, Defendants did not discourage either Fender or Twedell from talking with Plaintiffs' counsel. 2 In any event, having not spoken with him, Plaintiffs cannot fairly represent what Twedell's testimony would be, and therefore, it is hard to see how Plaintiffs can argue that his testimony would be unique or essential to their case. In fact, the opposite is true. As with Fender, there are a number of other witnesses already listed who worked as Underground Maintenance Mechanics and/or who are familiar with the job duties and responsibilities of the position. Therefore, it would appear that Twedell's testimony, like that of Fender, would be largely cumulative in any event, and therefore, unnecessary. Thus, not allowing Plaintiffs to

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Plaintiffs' further suggestion that Defendants' counsel wrongfully purported to speak on behalf of Fender or Twedell is similarly without merit. As can be plainly seen on its face, Defendants' July 11, 2005 letter does not state or imply any such thing. See Exhibit 1 to Plaintiffs' Renewed Motion.

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amend the Pre-Trial Order to add Twedell to their witness list would not result in manifest injustice, and therefore, Plaintiffs' Renewed Motion should be denied. III. CONCLUSION

As set forth above, Plaintiffs still have not shown that manifest injustice would result if the Pre-Trial Order were not amended to add these witnesses. Even taking Plaintiffs' representations regarding the testimony of the witnesses as true, such testimony would be cumulative of witnesses already on Plaintiffs' witness list, and therefore, such testimony is neither unique nor necessary. There are already far too many witnesses and exhibits listed by Plaintiffs in this case. As the Court has aptly noted, Plaintiffs should be narrowing the scope of the issues to be presented, not expand ing them. Plaintiffs' Renewed Motion only makes this problem worse, not better. Therefore, for all of the foregoing reasons, Defendants respectfully request that Plaintiffs' Renewed Motion to Add Witnesses and Permit Testimony be denied. Dated: August 3, 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 (303)295-8000 ATTORNEYS FOR D EFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on August 3, 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 email addresses:

[email protected] (J. Keith Killian) [email protected] (Damon Davis) 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 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]

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