Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE DerKEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP Defendants. ______________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE REGARDING THE TESTIMONY OF BART CHAVEZ ______________________________________________________________________________ Plaintiff, by her attorneys, Dietze and Davis, P.C., respectfully submits the following Response to Defendant's Motion in Limine Regarding the Testimony of Bart Chavez. ARGUMENT A. Plaintiff did not endorse Chavez only to provide testimony against Ross.

Lionbridge claims that Plaintiff did not endorse any expert in her case against Lionbridge and that Mr. Chavez was endorsed only in support of Plaintiff's malpractice claim against Sharryn Ross and her law firm. This is incorrect. Plaintiff's Rule 26(a)(2) Expert Testimony Disclosures, attached to Lionbridge's Motion in Limine, state that Mr. Chavez will testify "concerning immigration matters in general, the handling of the effort to obtain a green card for Plaintiff, and Defendants' conduct in that effort" (emphasis added). Mr. Chavez's "Report of Expert Witness," attached to the disclosures, is critical of "the

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manner in which defendants conducted the effort to resolve plaintiff's status" (emphasis added). The Report proceeds to detail what Mr. Chavez believes to be the defendants' shortcomings.1 Lionbridge implies that it was understood that the extension of the deadline for disclosure of experts after the amendment of the complaint did not allow Plaintiff to endorse an expert with respect to her claims against Lionbridge. This too is wrong. On November 9, 2004, the Magistrate Judge set January 14, 2005 as the deadline for affirmative expert disclosures. In January 2005, Plaintiff filed her Motion to Amend Complaint, seeking to add a claim against Ross and her firm. Concurrently therewith, Plaintiff filed a Motion to Amend Scheduling Order to Permit Filing of Amended Complaint. In paragraph 14 therein, Plaintiff requested an extension of the deadline for expert disclosures. After hearing on April 14, 2005, the Magistrate Judge reset the affirmative expert disclosure deadline to August 15, 2005. See Minute Order of April 18, 2005. Plaintiff was not limited to endorsing only an expert on her new claim against Ross. There also was nothing preventing Lionbridge from naming an affirmative expert or a rebuttal expert to defend Plaintiff's claims against Lionbridge. Had the undersigned believed that there was doubt about Plaintiff's right to

name an expert against Lionbridge, he would have asked for clarification and a specific ruling on that issue, since it had been Plaintiff's intent to name such an expert by the initial deadline, had the need for amendment of the Complaint not arisen. In its Motion in Limine, Lionbridge refers to a discussion at the hearing about not reopening the case. A review of that discussion demonstrates that it related to the understanding that the In paragraph 2 of its Motion in Limine, Lionbridge states, "Mr. Chavez' opinion is directed not only to Ms. Sharryn Ross, the attorney and former defendant in this case, but also to Lionbridge." This statement seemingly is inconsistent with its claim in paragraph 4 that Plaintiff did not designate any expert in her case against Lionbridge. 2
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addition of Ross would not reopen discovery as to the preexisting claims. See page 14 of transcript of April 14, 2005 hearing, attached to Lionbridge's Motion in Limine. Under the circumstances, it would not have made sense to prevent Plaintiff from naming an expert against Lionbridge or prevent Lionbridge from naming an expert against Plaintiff. A new party had been introduced to the proceedings and the legal position of that party was not known until Ross filed her Answer on April 18, 2005. Certainty, Ross's response to the factual allegations of the Amended Complaint and her assertion of affirmative defenses would have to be considered by any expert in arriving at an opinion with regard to the conduct of both Lionbridge and Ross. Plaintiff served her expert disclosure by August 15, 2005. It contained the above-referenced statements about Defendants' conduct. Lionbridge did not move to strike that disclosure by claiming that Plaintiff was not permitted to name an expert with respect to her claims against Lionbridge. B. Mr. Chavez does not have to be licensed in Colorado in order to provide expert testimony relating to immigration practices.

Without citation of authority, Lionbridge argues that Mr. Chavez is not qualified to testify because he is not licensed in Colorado. Lionbridge is mistaken. Mr. Chavez is not going to testify that Lionbridge had an obligation to sponsor Plaintiff, under Colorado law or otherwise. It is undisputed that Lionbridge did agree to sponsor Plaintiff with respect to her application for permanent resident status and that it agreed to assist and support her in that process. The focus at trial will be on whether the actions and conduct of Lionbridge and its agent, Ross, breached a contract, a promise, or a fiduciary duty in the effort to obtain permanent resident status for Plaintiff.

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Mr. Chavez is licensed in Nebraska and Kansas and practices in all areas of immigration law. See resume attached to Rule 26(a)(2) disclosures, attached to Lionbridge's Motion in Limine. He considers himself an expert in immigration and nationality2 laws, which is a whole body of law (Deposition of Bart Chavez, attached to Lionbridge's Motion in Limine as Exhibit B, 12:5-13:7). As can be seen from his resume, attached to the Rule 26(a)(2) disclosures that are attached to the Motion in Limine, Mr. Chavez is qualified to provide opinions with respect to the employer's and its agent's conduct of the effort to obtain permanent resident status for Plaintiff. Mr. Chavez is not licensed to practice in Iowa, but was allowed to testify as an expert in dePape v. Trinity Health System, Inc., 242 F.Supp.2d 585 (N.D.Iowa 2003), where the court applied the law of Iowa. Id. at 601. It is well settled that medical experts may be permitted to testify in matters concerning which they are qualified even though they may not be licensed to practice medicine in the jurisdiction involved. Hayes v. U.S., 367 F.2d 216, 222 (10th Cir. 1966), citing 32 C.J.S. Evidence § 546(92) pages 336-346. This rule has been applied to experts in numerous other professional fields. Wood v. State, 891 So.2d 398, 408-409 (Ala.Crim.App.2003) (engineering); Paradise Prairie Land Co. v. United States, 212 F.2d 170, 173 (5th Cir.1954) (land surveyor); Teat v. State, 516 S.E.2d 794, 796 (Ga. App. 1999) ( psychology or mental health); In re: C.W.D., 501 S.E.2d 232, 239 (Ga. App.1998) (psychologist); Walker v. Bangs, 601 P.2d 1279, 1282-83 (Wash. 1979) (attorney); Kluck v. Kluck, 561 N.W.2d 263, 266 (N.D.1997) (psychologist); Fowler v. City of Manassas Dep't of Social Servs., (No. 0878-94-4, January 17, 1995) (Va.Ct.App.1995) (unpublished memorandum) (psychologist); Reutter v. State, 886 P.2d 1298, 1308 (Alaska App.1994) (social work and child advocacy); People v. Scalera, 118 A.D.2d 670, 500 N.Y.S.2d 19, 20 (1986) (physician); State v. Walker, 58 Or.App. The word "nationality" appears in the deposition transcript, but it is presumed that Mr. Chavez said "naturalization." It was a telephone deposition. 4
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607, 649 P.2d 624, 625 (1982) (clinical psychologist); Geophysical Sys. Corp. v. Seismograph Serv. Corp., 738 F.Supp. 348 (C.D.Cal.1990) (geophysicists); State v. Belken, 633 N.W.2d 786 (Iowa 2001) (DNA expert); Commonwealth v. Brown, 676 A.2d 1178 (Pa. 1996)(forensic psychologist); Yandell v. State, 555 S.W.2d 561 (1977) (neurosurgeon); Ducote v. Allstate Ins. Co., 242 So.2d 103 (La.App.1970) (chiropractor). C. Mr. Chavez's testimony is relevant to the issue of whether Lionbridge breached the contract, a promise, or a fiduciary duty.

Although the Court has dismissed Plaintiff's claim for negligence, claims for breach of contract, breach of fiduciary duty3, and promissory estoppel remain for trial. Under all of these claims, the focus will be on whether Lionbridge and its agent, Ross, lived up to any contract, promise, or fiduciary duty that the fact finder determines to have existed. Lionbridge asserts that under all of Plaintiff's claims, "the issue is what did Lionbridge allegedly agree to do, and the issue is not what standard of care applies." Motion in Limine, para. 6. While it is true that "what did Lionbridge allegedly agree to do" will be at issue, that is not the end of the inquiry. After the fact finder answers this question, it must then decide whether Lionbridge actually did what it agreed to do. One thing that Lionbridge indisputably agreed to do is to "assist and support long-term employees in the process of applying for lawful permanent resident status" (quote from the language

In paragraph 6 of its Motion in Limine, Lionbridge says that Plaintiff "has not alleged a fiduciary relationship imposed by law." Plaintiff does not understand this statement. Plaintiff has asserted a claim for breach of fiduciary duty and this Court has found that Plaintiff could establish a fiduciary relationship by demonstrating that Lionbridge was acting as her agent or by establishing the existence of a relationship of trust and confidence. See Order of January 26, 2006 at 11-14. 5

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of Lionbridge's Permanent Resident Program). However, the parties disagree on whether Lionbridge properly assisted and supported Plaintiff. Mr. Chavez will be able to describe the H-1B and green card process in general in order to give the finder of fact an understanding of the context in which decisions were made and actions were taken. He then will be able to describe the actions that could and should have been taken to assist and support Plaintiff's effort to obtain permanent resident status. Thus, the finder of fact will be given the tools to measure Lionbridge's conduct against the express representation in its Permanent Resident Program, against whatever other obligations arose from its sponsorship of Plaintiff, and against whatever duties this Court determines were owed to a fiduciary.4 Without testimony from Mr. Chavez, the finder of fact may be left to guess whether Lionbridge satisfied its obligations.5 Contrary to Lionbridge's argument, it is not being held to some standard beyond its knowledge and experience. It is not a novice in immigration matters, having been involved numerous immigration cases over the years. Its agent, attorney Ross, is an immigration attorney who has handled hundreds of cases. Mr. Chavez merely will testify about what an employer in Lionbridge's position could and should have done to assist and support Plaintiff in her attempt to secure a green card. Among the proposed jury instructions is an instruction based on C.J.I. Civ. 4th 26:4, setting forth the fiduciary duties owed to Plaintiff, should the jury find the existence of a fiduciary relationship. Although Lionbridge does not agree with several of the duties included by Plaintiff, it agrees that there is a fiduciary duty "to operate within the bounds of prudent judgment, reasonableness, and equity." Mr. Chavez's testimony will assist the jury to determine whether Lionbridge complied with this duty in doing whatever the jury determines that it agreed to do. Lionbridge makes reference to Mr. Chavez's acknowledgment that there is no "immigration law or regulation" that would require Lionbridge to continue with Plaintiff's application for permanent resident status (after Plaintiff declined to be demoted to translator). Plaintiff never has contended that Lionbridge's obligations arose from a law or regulation. 6
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D.

The fact that Mr. Chavez identified certain responsibilities as those of attorney Ross does not relieve Lionbridge of responsibility.

Lionbridge points to Mr. Chavez's testimony that it is the responsibility of the attorney to communicate more options to the employee. Although unstated, Lionbridge appears to be suggesting that Mr. Chavez has admitted that Lionbridge has no such responsibility. This is incorrect. The cited deposition testimony does not indicate that the employer has no responsibility to communicate more options to the employee. In fact, Mr. Chavez's Report of Expert Witness indicates that both Lionbridge and Ross should have communicated more options to Plaintiff: .... Defendants failed to place the plaintiff on notice of the situation in a reasonable or timely manner leaving her with no other options to resolve her immigration issues. If defendants were unable to resolve the prevailing wage issue, they should have had a meeting with the plaintiff and advised her accordingly. A review of the record shows that this was not done until September of 2002. The parties should have explored options for the plaintiff in May of 2002 at the latest .... Report of Expert Witness, page 2, third and fourth paragraphs. Mr. Chavez's testimony also was given in connection with Plaintiff's malpractice claim against Ross. The Court has found that there was no attorney-client relationship between Ross and Plaintiff. If Ross had a responsibility to communicate more options to the employee, but that responsibility was not owed directly to Plaintiff, a non-client, then Ross's responsibility to communicate to the employee must have been undertaken on behalf of Lionbridge, her principal. Thus, the responsibility was Lionbridge's as well as Ross's. CONCLUSION

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For all the above-stated reasons, Lionbridge's Motion in Limine must be denied. Plaintiff requests such other and further relief as the Court deems just and proper. Dated this 28th day of November, 2006. Respectfully submitted, DIETZE and DAVIS, P.C. By: "s/ Joel C. Maguire" Joel C. Maguire Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected] Attorney for Plaintiff Isabelle DerKevorkian

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CERTIFICATE OF SERVICE I hereby certify that on November 28, 2006, 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: John Edwin Bolmer, II [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected]

By: "s/ Susan J. Armour" Susan J. Armour, Legal Assistant Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected]

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