Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

Document 189

Filed 07/30/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-PC-2163 (MEH) SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ DEFENDANT'S REPLY IN SUPPORT OF ITS CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS AND REQUEST FOR EVIDENTIARY HEARING ______________________________________________________________________________ Defendant El Paso Properties, Inc. ("El Paso") respectfully submits this Reply in Support of its Contingent Motion to Exclude Plaintiffs' Expert Witness Opinions and Request for Evidentiary Hearing. El Paso hereby incorporates by reference the points discussed in its Reply in Support of its Motion for Judgment on the Basis of Collateral Estoppel filed contemporaneously here with. If the Court declines to apply collateral estoppel to the District Court's Rule 702 findings in Sierra Club v. Cripple Creek & Victor Gold Mining Co, et al., Civil Action No. 00-MK-2325, the Court should hold an evidentiary hearing to determine whether the opinions of Kenneth Klco, Ann Maest, Ph.D., and Robert Burm are admissible under Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993). This Court has wide discretion in deciding the procedure by which a Rule 702 hearing will be held. Dodge v. Cotter, 328 F.3d 1212, 1228 (10th Cir. 2003) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999).

Case 1:01-cv-02163-BNB-MEH

Document 189

Filed 07/30/2006

Page 2 of 3

El Paso respectfully suggests the following procedure as a fair and efficient means of resolving the parties Rule 702 challenges. Two weeks prior to the hearing the parties will make a joint submission to the Court setting forth the expert opinions they intend to proffer, any challenges to the other party's proffered opinions, and the names and qualifications of any witnesses that will be called to testify at the hearing. At the hearing the proponent of each opinion may conduct direct examination of its witness followed by cross examination by the opposing party. The opponent may then conduct direct examination of any rebuttal witnesses followed by cross examination. El Paso respectfully requests the Court to apply the doctrine of collateral estoppel to bar Plaintiffs' expert opinions or in the alternative to hold a hearing to determine the reliability of the challenged opinions. Respectfully submitted this 30th day of July, 2006. s/ Stephen D. Harris Stephen D. Harris MERRILL, ANDERSON, & HARRIS, LLC 20 Boulder Crescent Colorado Springs, Colorado 80903-3300 (719) 633-4421 (telephone) (719) 633-4759 (facsimile) [email protected] Counsel for El Paso Properties, Inc.

CERTIFICATE OF SERVICE
DEFENDANT 'S R EPLY IN SUPPORT OF ITS C ONTINGENT M OTION TO E XCLUDE P LAINTIFFS ' EXPERT W ITNESS O PINIONS AND R EQUEST FOR A E VIDENTIARY H EARING Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163) (MEH) Page 2

Case 1:01-cv-02163-BNB-MEH

Document 189

Filed 07/30/2006

Page 3 of 3

I hereby certify that a true and correct copy of the foregoing DEFENDANT'S R EPLY IN SUPPORT OF ITS C ONTINGENT M OTION TO E XCLUDE P LAINTIFFS ' EXPERT W ITNESS O PINIONS was sent with the Clerk of Court using the ECF system which will send notification of such filing to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 [email protected] Roger Flynn, Esq. Jeffrey C. Parsons, Esq. Post Office Box 349 412 High Street Lyons, CO 80540 [email protected] [email protected] s/ Michael J. Gustafson Michael J. Gustafson, Esq.

DEFENDANT 'S R EPLY IN SUPPORT OF ITS C ONTINGENT M OTION TO E XCLUDE P LAINTIFFS ' EXPERT W ITNESS O PINIONS AND R EQUEST FOR A E VIDENTIARY H EARING Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-PC-2163) (MEH) Page 3