Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01070-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-F 1070 (PAC) DANNIE W. JOHNSON and MARTHA D. JOHNSON Plaintiffs, v. OVERRIGHT TRUCKING, INC., a New Mexico Corporation, and ROSS A. REED, Defendants. PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTIONS IN LIMINE WITH SUPPORTING AUTHORITIES Plaintiffs, by and through their undersigned Counsel, for their Response to Defendants' Motions In Limine With Supporting Authorities state: A. Procedural Background: The Defendants' Motion in Limine re: Emotional Distress is a partial recantation of their Motion to Partially Dismiss the Plaintiffs' Claims for Emotional Distress. Defendants are referencing the same decisional law and same facts to support this Motion. The remainder of this portion of the Defendants' Motion in Limine is a restatement of the arguments presented by counsel Hardman re: his Motion for Protective Order, stating lack of relevancy as to Plaintiffs' damage claims as argued before the Honorable Magistrate Judge Coan on April 26, 2005. The Honorable Judge Patricia Coan denied the Defendants' Motion for Protective Order. B. Factual Background: The Plaintiffs were sound asleep in their home at 6:00 A.M. on January 1, 2004, when the Defendant Ross A. Reed either passed out or fell asleep while

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driving an oil field water truck owned by Overright Trucking and weighing approximately 30,000 pounds, and under the influence of amphetamines and/or methaemphatamines and slammed into the Plaintiffs' home, entering same, and knocking the Plaintiffs out of bed, rupturing a natural gas line and knocked the home off its foundation by four (4) feet and damaged the home to such an extent that it must be torn down and rebuilt. C. Argument and Authorities: Despite the facts that Defendants' truck entered the Plaintiffs' home, ruptured a natural gas line, knocked the Plaintiffs out of bed, and knocked the home off its foundation by four (4) feet, and damaged the home to such an extent that it must be torn down and rebuilt, and yet the Defendants state that Plaintiffs have not alleged they were in the "zone of danger" and therefore are not entitled to recover damages for emotional distress. Defendants have, unfortunately, again mischaracterized Plaintiffs' fact allegations. See Webster v. Boone 992 P.2d 1183 (Colo. App. 2000) where the Colorado Court of appeals held at page 1185 that "Damages available on trespass and nuisance claims ... can include ...discomfort and annoyance to the property owner as the occupant." Citing Board of County Commissioners v. Slovek 723 P.2d 1309 (Colo. 1986) and Burt v. Beautiful Saviour Lutheran Church 809 P.2d 1064. (Colo. App. 1990) ; and note that (2) the Plaintiffs' Complaint states [as does Exhibit D annexed to the Response to Partial Motion for Summary Judgment] that the truck entered the home, thus Plaintiffs were in the "zone of danger" and are entitled to recovery of their damages for emotional distress. Also see Webster v. Boone 992 P.2d 1183 (Colo. App. 2000) at page 1187 where the Court held that "... emotional distress damages are not recoverable on a negligence claim in the absence of physical manifestations of the distress, creation of an unreasonable risk of bodily harm, or willful and wanton conduct." [Emphasis added] Citing Towns v. Anderson 195 Colo. 517, 579 P.2d 1163 (1978) and Williams v.

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Continental Airlines, Inc. 943 P.2d 10 (Colo. App. 1996).

By any reasonable measure,

according to Plaintiffs' complaint, Plaintiffs were within the zone of danger, thereby allowing recovery under the theory of emotional distress. Defendants incorrectly cite Atsepoyi v. Tandy Corporation 51 F. Supp 2d 1120 (D. Colo. 1999) as supporting their argument. Plainly the Plaintiffs were within the "zone of danger" [Alleged in the Complaint at ¶ 9 stating the Defendants "... thoughtlessly, negligently, carelessly and recklessly drove the water truck ... entering into the house with such force as to knock the structure off its foundation ..."] and by Defendants' conduct, the Plaintiffs experienced an unreasonable risk of bodily harm and were subject to a direct threat of harm; a legal premise cited with favor in Atsepoyi at page 1127 favorably citing Card v. Blakeslee 937 P.2d 846 (Colo. App. 1996) at p. 849 for that premise. Also see Plaintiffs' Affidavit annexed to the Plaintiffs' Response to Defendants' Partial Motion for Summary Judgment and incorporated herein by this reference, at ¶ `s Four (4) and Five (5), where Dannie Johnson stated the house was connected to a natural gas line that he had to find (in the dark) and shut off the valve, with the risk being that any spark would set off an immediate fire and place he and his wife in further danger of physical harm. Plaintiffs were also in danger of being injured by flying glass and debris as the truck hit the home and were knocked out of their bed. Moreover the emotional distress damages are intertwined and interwoven with the Plaintiffs' claims for lost enjoyment of life and inconvenience, which are additional damages claimed by Plaintiffs and not being objected to for limine purposes in this matter. Otherwise stated the emotional impact of being subjected to instant removal from their home and being involuntarily transplanted into living in a travel trailer since that date to present, together with involuntary relocation into off-site storage of almost all of Plaintiffs' personal property and

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personal effects, are claims that cannot be readily separated from the emotional distress aspects of this case.1 None of those aspects of this case can be accurately expressed without also referencing the emotional impact the change in lifestyle has had upon the Plaintiffs. All of `nonimpact' emotional distress claims are relevant and admissible regardless of the "zone of danger" requirements [the threshold and requirements for which the Plaintiffs assert they have met] and therefore the evidence supporting the Plaintiffs' claims for emotional distress are admissible. D. Conclusion: According to the foregoing facts and applicable law, the Defendants' Motion in Limine with respect to emotional distress must be denied. II. MOTION IN LIMINE RE: EVIDENCE OF DRUG TESTS RESULTS FOR ROSS A. REED. A. Procedural Background: This portion of the Defendants' Motion in Limine is a restatement of the arguments presented by defense Cornell re: his Motion for Protective Order before the Honorable Magistrate Judge Coan on April 26, 2005, a Motion which was denied. Specifically, Defense Counsel, at that time, argued that the Protective Order should be granted because the evidence of Mr. Reeds' drug use and how the accident occurred was irrelevant allegedly because liability had been previously admitted via Defendants' discovery answers to Admissions and Interrogatories. At that time the Court queried opposing counsel and asked if the Answer had been Amended to withdraw the affirmative defenses and specifically whether the affirmative defense of Comparative Negligence of the Plaintiffs had been withdrawn. In response, Defense Counsel admitted that the amendment deadline of December 30, 2004 had expired without the Defendants having re-filed or even attempting to re-file their Motion to Amend, and have

The foregoing is a short list of the problems that Plaintiffs have experienced during this year and is not intended to be a complete list.

1

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consequently maintained their denial of liability by praying that Plaintiffs "recover nothing by their Complaint." 2 To date, Defendants have never amended their Pleadings. However, at that time and at all times since, Defendants never withdrew their request that Plaintiffs "take nothing by their complaint" or their demand that "Plaintiffs' pay the Defendants' attorneys fees" and at all times, according to the pleadings, all the issues of comparative negligence and the other Affirmative Defenses were never withdrawn and always at issue. The Defendant, Reed, does not contest that he was under the influence of amphetamines and methamphetamines and these facts go specifically to the issues of how the accident occurred, liability and damages. See F.R.E. Rules 401 and 402. The claim that Mr. Reed's drug intoxication is prejudicial is akin to a child killing his parents and then seeking sympathy because he is an orphan. There, as here, F.R.E. Rule 403 was not contemplated as being applicable. Any prejudice that will inure to Mr. Reed was caused solely by the grievousness of his actions and was solely of his own grievous misconduct. Mr. Reed has freely admitted in his deposition to having ingested the methamphetamines and amphetamines, which is an admission by the party opponent and is also admissible on that basis. Existing Pre-Trial Order: After hearing argument and reviewing the applicable law, a Fed. R. Civ. P. 16 Pre-Trial Order was issued by Hon. Magistrate Judge Patricia Coan, which allowed the Plaintiffs to obtain information regarding Mr. Reeds' used of drugs while driving the truck for Overright and obtain additional information about how the accident occurred. B. Factual Background: When the Defendant Ross A. Reed either passed out or fell asleep while An unopposed Motion to Amend Answer and Defenses had been previously filed but was denied for failure to confer and the Defendants never again attempted to amend their Answer or Affirmative Defenses, allowing the amendment deadline to expire.
2

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driving a 30,000 pound oil field water truck owned by Overright Trucking while he was under the influence of amphetamines and/or methamphetamines. Mr. Reed had been partying the night before, slept approximately 3-3 ½ hrs, and slammed into the Plaintiffs' home, entering the home and knocked the Plaintiffs out of bed, ruptured a natural gas line and knocked the home off its foundation by four (4) feet. Mr. Reed claims he never recalled leaving the road with his truck. [This despite the clear presence of skid marks on the highway showing where the truck had exited the road.] Among other claims, Plaintiffs are claiming damages for lost enjoyment of life, inconvenience and emotional distress. All of those claims are intertwined and collectively will total, together with the cost of reconstruction of the home, the sum of Plaintiffs' damages, together with pre-judgment interest and other claims set forth in the Complaint. All of those damages are relevant to Defendants' conduct with respect to how the accident happened. C. Argument and Authorities: Defendants' sole reliance upon the language of Fed. R. Civ. P. 36 and its Notes is misplaced. The Rule states the Court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. [Emphasis added]. Plaintiffs have previously filed their Motion for Sanctions which was, heard on 4/26/05, and, but denied for failure to include a reference to D.C. Colo. L Civ R 7.. As support for the position that Plaintiffs will experience prejudice in maintaining the action or defense on the merits, Plaintiffs stated they have been placed in the untenable position of conducting the entire deposition phase of discovery of this case on the basis of the Defendants' unamended Answer and Defenses, while knowing that certain of the answers and defenses were being rebutted by the

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Answers to Interrogatories and Answers to Request for Admissions. In further application of Fed.R.Civ.P. 36, denying withdrawal or amendments, see Alamo v. Del Rosario 69 App. D.C. 47; 98 F.2d 328, (1938), where the United States Court of Appeals for the District of Columbia stated that: "a statement made for the purpose of giving testimony is not a judicial admission" and ... "Mere testimony, though it come from a party, is not `by intention an act of waiver.' A witness is not selling something or giving something away, but simply reporting something. The testimony of parties to a suit must be regarded as evidence, not facts admitted.", citing Mathews v. Story 54 Ind. 417, 419, and later stating that " ... many cases which intimate that plaintiff is conclusively bound by his own testimony are not authority for the proposition, because they contain no contrary testimony." [Citing Thalhimer Bros., Inc., v. Casci 160 Va. 439, 168 S.E. 433, Virginia Electric & Power Co. V. Bellines, 162 Va. 671, 175 S.E. 35; Frazier v. Stout 165 Va. 68, 181 S.E. 377; Goodwin v. E.B. Nelson Grocery Company 239 Mass 232, 132 N.W. 51; Bell v. Johnson 142 Kan. 360, 46 P.2d 886; Fulghum v. Atlantic Coast Line Railroad Company 158 N.C. 555, 74 S.E. 584, 39 L.R.A.N.S. 558; Thomason v. Purcell Construction Co. 160 N.C. 390, 76 S.E. 266 and stating the note is 50 A.L.R. 979 includes citations of that sort."] In this instance, given the Defendants' apparent refusal to amend, their Answer, the Plaintiffs had no choice but to pursue the evidence of how the accident happened, including the evidence of Mr. Reed's drug use and the contents of medical drug testing as related to the wreck. A judicial admission has been identified in Colorado through the bellwether case of Kempter v. Hurd 713 P.2d 1274 (Colo. 1986) during a post judgment hearing where counsel

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stipulated to certain facts which ultimately resulted in dismissal of the action, holding that a statement made by counsel was binding upon his or her client. Here, a judicial admission has not been made because contradictory statements have been made by opposing counsel [in the Answer and Defenses] and there was and has been no stipulation by the parties that these admissions are controlling. In addition, the issues of Plaintiffs' other damages for inconvenience and lost enjoyment and the matter of Plaintiffs' "contributory negligence" still remain pending and at issue. All of those claims are relevant to `how the accident happened', and "what caused the accident," Therefore the facts surrounding Defendants' drug use prior to the accident as well as his personal activities prior to the accident are admissible. Also see McCullough et. al. v. Odeco, Inc. 1991 WL 99413 (E.D. La.) where the U.S. District Court held, in a discovery contempt action, that " ... a statement of contention is not a judicial admission unless it is an intentional waiver releasing the opponent from a proof of fact. [Emphasis added] citing McNamar v. Miller 269 F.2d 511, 515 (D.C. Cir. 1959) and Howard Industries, Inc. v. Rae Motor Corp 186 F. Supp. 469, 471-72 (E.D. Wisc. 1960) No evidence has been offered to support the claims that Defendants' discovery statements were tendered to Plaintiffs counsel for the purpose of amending the pleadings, a point made more poignant in light of the fact that no Motion to Amend was made. Even if, arguendo, the Defendants have admitted negligence and liability, the Defendants have never admitted the extent of their damages and still claim Plaintiffs should "take nothing by their complaint," and that the Plaintiffs should "pay the Defendants' attorneys fees." All of the claims of Plaintiffs of "non emotional distress" damages are relevant to how the accident happened and Mr. Reed's drug intake and activities the night before the accident and how the

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accident happened are relevant to those damages. D. Conclusion: Mr. Reed's medical records and evidence related to drug intake prior to the accident are highly relevant and admissible; the only question is the weight to be put upon the evidence. Mr. Reed has freely admitted in his deposition to having ingested the methamphetamines and amphetamines, which is an admission by the party opponent. What remains is the question of this Motion and that being said in the alternative is: "Is there not a point at which it is too late to withdraw the Affirmative Defenses." That is the thrust of the last section of Rule 36 where should be clear that the Hon. Magistrate Judge Patricia Coan's pre-trial Order has prevented the withdrawal of Defendants' Defenses, and that doing so would adversely affect the presentation of the Plaintiffs meritorious claims and the Plaintiffs will be "prejudiced in maintaining the action or defense on the merits." Defendant Reed's drug test results, should be admitted into evidence. The alternative has the effect of allowing an amendment to the Defense' pleadings, which was not the stated purpose of the Answers to the Requests for Admissions and Responses to Interrogatories when they were tendered by Counsel to the undersigned. Perhaps the Defendants may now wish they had amended their pleadings, given the present posture of this case, however this back-door attempt to do so should not be allowed because they have not done so. Therefore, according to the foregoing facts and applicable law, the Defendants' Motion in Limine with respect to Evidence of Drug Testing Results for Ross A. Reed must be denied. WHEREFORE, on the basis of justice and equity and the foregoing law and facts,, the undersigned prays the Court DENY the Defendants' Motions in Limine with respect to both requests for exclusion: i.e. (1) Defendants' attempt to exclude evidence of emotional distress and (2) Defendants' attempt to exclude of evidence drug tests for Ross A. Reed.

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Respectfully submitted this 12th day of July, 2005 by: MCDANIEL BATY MILLER AGRO WALES & ROBBINS LLC PHILLIPS & GRAHAM

s/ Michael W. Baty Michael W. Baty, Esq. #14804 (Colo.) 1040 Main Ave. P.O. Box 1157 Durango, CO 81301 (970) 247-1113

s/ Randolph H. Phillips Randolph H. Phillips, Esq. #576575 (GA) 609 Pine Ave P.O. Box 2303 Albany, Georgia 31702 (229) 435-4452

CERTIFICATE OF SERVICE The undersigned certifies that on the 12th day of July , 2005 the undersigned 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: Mr. Brad Hardman, Esq. Mr. Ted Bills, Esq. Wittman & McCord fax#: 719/590-9899 UMB Bank Building 5825 Delmonico Drive, Suite 320 Colorado Springs, CO 80919 s/ Michael W. Baty Michael W. Baty, Esq. Attorney for the Plaintiffs McDaniel Baty Miller Agro Wales & Robbins LLC 1040 Main Ave. Durango, CO 81301 970/247-1113 970/259-2690 [email protected]