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

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

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Filed 07/15/2005

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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, JARED L. DILLON, Plaintiffs, v. MOUNTAIN COAL COMPANY, L.L.C., ARCH WESTERN RESOURCES, L.L.C., and ARCH COAL, INC., Defendants. PLAINTIFFS' RENEWED MOTION TO ADD WITNESSES AND PERMIT TESTIMONY

The plaintiffs, Michael E. Clawson and Jared L. Dillon, through their undersigned counsel, Killian, Guthro & Jensen, P.C., hereby submit Plaintiffs' Renewed Motion To Add Witnesses and Permit Testimony, and in support thereof, state as follows: 1. This motion is seeking to add the following witnesses to the pre-trial order, which

would allow them to testify at trial: Shawn Pfifer, Greg Fender, and Andy Tweddell. The court denied plaintiffs' earlier motion to add certain witnesses without prejudice. 2. To prevail on a motion to add witnesses to the pre-trial order, plaintiffs must

demonstrate that it would work a manifest injustice to proceed to trial without the added witnesses. Oral Order of June 15, 2005, p.15 l.1-8. 3. The testimony of neutral witnesses carries a different weight than the testimony

of parties or those identified with parties. The testimony of a current or former employee, who is

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not a plaintiff, will be viewed differently than the testimony of a plaintiff or of the management of the corporate defendants. This is as it should be. Juries should take into account a witness's interests, motives, and biases when assessing their credibility. Eighth Circuit Civil Model Jury Instruction 3.03 (1998); Ninth Circuit Civil Model Jury Instruction 3.7 (1997); CJI-Civ. 4th 3:16. The testimony of non-party witnesses is not redundant with the testimony of party witnesses, even when they cover similar subjects, because the testimony caries an inherently different weight. 4. Shawn Pfifer, former warehouse technician at the West Elk Mine, was

interviewed prior to filing this motion. Based on this interview, Pfifer is expected to testify to the following: a) Pfifer was promoted from Warehouse Technician I to Warehouse Technician II after one year; b) Pfifer received approximately one week of training on the MIMS computer system; c) Pfifer received approximately one month of overall training for the warehouse position; d) A substantial amount of Pfifer's training was in mine practice and safety; e) Pfifer received some training on the use of equipment, such as forklifts; f) The night, or "graveyard," shift did not use the equipment, such as forklifts or loaders; g) The roads on which some of the equipment was driven were rough, but the company did not use a grader to level them; and h) The mine had a policy that employees should get help lifting something if help was needed. 5. The warehouse technician position was one of the possible accommodations for

the plaintiffs. Neither Clawson nor Dillon worked in the position. Thus Pfifer's testimony is very important as a neutral source of information about the job. The testimony about the promotion after one year is relevant to the issue of front pay as potential damages. The information on Pfifer's training is relevant to whether either plaintiff was qualified for the

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position. The fact that they would need training does not make the plaintiffs unqualified. Although Pfifer had some warehouse training, he had no mine training, whereas Clawson and Dillon had mine training, but less warehouse experience. Pfifer's testimony about not using the equipment on the night shift is relevant to the issue of reasonable accommodation. Clawson's only restriction was driving a vehicle with no shocks over rough roads. If no vehicles were used on night shift, Clawson could have worked night shift in the warehouse without violating his restrictions. Also, Pfifer says the roads that equipment was driven on were rough, but also says a grader was not used to smooth the roads. There is evidence including testimony, photos and video tape that the mine had graders available, on the surface. A reasonable accommodation would be to periodically smooth the roads used by the warehouse technicians with the companies' graders. Finally, Pfifer's testimony about obtaining assistance with lifting is relevant to the warehouse technician position as a potential accommodation for Dillon, who had a lifting restriction. 6. It would work a manifest injustice not to allow plaintiffs to call Shawn Pfifer as a

witness. Defendants have been aware of Pfifer and his significance as a result of their own comparisons of Pfifer and Clawson made to the CCRD and MSHA when Clawson complained about being denied the warehouse position. Pfifer is perhaps the only available witness to do the actual warehouse job who is not a current employee for the defendants. Pfifer's testimony is more insightful than the simple job description, and will provide the jury with a greater understanding of how the job actually functioned, and whether transfer to that position would be a reasonable accommodation.

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7.

Fender was interviewed prior to the filing of this motion. Fender is expected to

testify to the following: a) Dillon was a "greaser," another term for a "lube man;" b) A "greaser" did not have to lift much to do the job; c) Mountain Coal had a policy that if something weighed over fifty pounds, the worker should get help lifting it; d) Fender himself often got help lifting things at the mine; e) most people a Mountain Coal had specific jobs; and f) there were always a lot of positions open in the mine. 8. Fender's testimony is important in regard to a number of issues. Fender confirms,

contrary to the defendant's assertions, that workers at the mine had specific jobs. Fender confirms Dillon's position as it was actually performed and that Dillon did not have to do heavy lifting in his position. Fender confirms that the mine had a policy that workers should get help lifting over fifty pounds. This is important because Dillon's restriction was no lifting over fifty pounds. Dillon could be accommodated because under mine policy he would never be lifting over fifty pounds; the weight of objects over fifty pounds would be distributed between multiple people. Fender's testimony is also relevant to possible accommodation. Fender states that there were always many positions open at the mine. This, especially combined with defendants' failure to engage in the interactive process, makes it likely there was an open position with which plaintiffs could have been accommodated. 9. Not allowing the testimony of Fender would result in a manifest injustice. Fender

is no longer employed at Mountain Coal and is a neutral witness in this case. Fender was employed in the maintenance department of the mine with Dillon and worked with him for a short period of time. Based on a letter received from defense counsel, purporting to speak on behalf of Fender and Tweddell, Fender may even be biased toward defendants. Exhibit 1, Letter

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of July 11, 2005. Even though Fender is neutral, or perhaps favors defendants, his expected testimony is directly contrary to many of the key theories relied upon by the defendants in this case. Fender's testimony contradicts defendants' assertion that everyone had to do every job at the mine and that there were no specific positions. Fender also contradicts the idea that every job required heavy lifting and that workers had to be able to lift over fifty pounds on their own. As stated above, this information from a neutral witness carries more weight than the testimony of any party, and it is thus crucial information for the jury. 10. Plaintiffs have attempted to contact Andy Tweddell, but have been unsuccessful

in doing so, although it appears that defense counsel have been in contact with him. Plaintiffs' counsel sent a letter to Tweddell on July 5, 2005, in a further attempt to obtain an interview with him. Exhibit 2, Letter of July 5, 2005. Nothing about the letter was inappropriate or misleading. The letter accurately stated plaintiffs' intentions, and informed Tweddell of the potential detriment of not cooperating in plaintiffs' efforts. Nothing in the letter was threatening; it simply informed Tweddell of the possible ramifications of his decisions. Instead of contacting plaintiffs' counsel, Tweddell contacted defense counsel. Exhibit 1. From the tone and content of defense counsel's letter, one must question whether Tweddell was discouraged from contacting plaintiffs' counsel. At the very least, the letter seeks to discourage plaintiffs' counsel from contacting Tweddell, "demanding" that plaintiffs desist in certain alleged contact that in fact has not occurred. Although there is no indication that Holland & Hart represents Tweddell or Fender, the letter also purports to be speaking on their behalf, which is itself of questionable propriety.

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11.

Due to the inability to contact Tweddell directly, plaintiffs' counsel cannot be

certain of his expected testimony. However, having conferred with the individual plaintiffs, it is expected that Tweddell would be able to confirm the testimony of Fender and would be able to fill in any missing pieces from Fender's testimony. Tweddell spent more time working with Dillon than Fender and would be able to provide more detail in that regard. Tweddell's testimony is thus important to provide a more complete understanding of the workings of the mine and the positions in the mine. Furthermore, based on the vehemence of defendants' letter discouraging contact with Tweddell, it can be expected that he has additional information that is detrimental to defendants' position. It would be manifestly unjust not to allow the presentation of this testimony to the jury. 12. In a highly contentious case, the testimony of neutral witnesses is often the key to

the jury making accurate findings of fact. The testimony of neutral witnesses is distinct from the testimony of parties, or those related to parties, because it carries a greater weight. The testimony of these three witnesses individually, and combined, is important for the jury's understanding of the facts and their reaching of an accurate conclusion. WHEREFORE, the plaintiffs respectfully request that this court allow amendment of the pre-trial order to allow the testimony of Shawn Pfifer, Greg Fender, and Andy Tweddell. CERTIFICATION OF COMPLIANCE WITH D.C.COLO.LCivR 7.1 Plaintiffs' counsel sent a letter to defense counsel on July 7, 2005, stating their intention to renew the motion to add witnesses. On July 12, 2005, plaintiffs' counsel sent defense counsel a draft of this motion. On July 14, 2005, Jeff Johnson called and spoke to Damon Davis, informing him that defendants objected to this Motion.

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RESPECTFULLY SUBMITTED this 15th day of July, 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 Telephone: (970) 241-0707 ATTORNEYS FOR PLAINTIFFS

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UNITED STATES DISTRICT COURT FOR THE DISTRIT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on July 15, 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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