Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cv-01056-EWN-MEH

Document 67

Filed 02/10/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1056-EWN-MEH CONNIE J. REYNOLDS, Plaintiff, v. COBE CARDIOVASCULAR, INC., Defendant. ______________________________________________________________________________ DEFENDANT COBE CARDIOVASCULAR, INC.'S OPPOSED MOTION TO STRIKE SHERRI BRIANNE AND CERTIFICATE OF COMPLIANCE ______________________________________________________________________________

Defendant COBE Cardiovascular, Inc. ("COBE"), by its counsel, hereby moves this Court for an Order Striking Sherri Brianne ("Brianne") from Plaintiff Connie J. Reynolds' ("Plaintiff") Trial Witness List. As grounds for this Motion, COBE states as follows. CERTIFICATE OF COMPLIANCE Pursuant to D.C.COLO.LCivR 7.1A, undersigned counsel certifies that the parties have conferred concerning the relief requested herein, and that Plaintiff opposes this motion and objects to the requested relief. ARGUMENT On January 27, 2006, this Court signed the Final Pretrial Order. Within the Order, Brianne was not listed by either the Plaintiff or COBE as a witness. Nonetheless, on February 8, 2006, Plaintiff filed her witness list with the Court wherein she lists Brianne as a witness who may be present at trial.

00268261 / 1

Case 1:04-cv-01056-EWN-MEH

Document 67

Filed 02/10/2006

Page 2 of 3

As stated in Section 10 of the Court's Final Pretrial Order, dated January 27, 2006, and pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, the Final Pretrial Order controls the subsequent course of this action and trial. The Order further mandates that its contents "may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest justice." COBE does not consent to the amendment of the Final Pretrial Order to include Brianne as a witness. Plaintiff has failed to provide evidence or argument as to why a failure to include Brianne will result in manifest justice. Lastly, if Plaintiff appropriately listed Brianne in the Final Pretrial Order, COBE would have argued against the inclusion of her testimony within in its Motion in Limine filed on January 31, 2006. Because Plaintiff omitted Brianne's name, however, COBE did not raise argument and now is precluded from doing so. As a result, allowing Brianne to testify would unfairly prejudice COBE. CONCLUSION WHEREFORE, Defendant COBE Cardiovascular, Inc. respectfully moves this Court for an Order Striking Sherri Brianne from Plaintiff Connie J. Reynolds' Trial Witness List. DATED this 10th day of February, 2006. Respectfully submitted,

/s Susan S. Sperber Susan S. Sperber Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, Colorado 80202 Telephone: (303) 623-9000 Fax: (303) 623-9222 [email protected] Attorney for Defendant COBE Cardiovascular, Inc.

00268261 / 1

2

Case 1:04-cv-01056-EWN-MEH

Document 67

Filed 02/10/2006

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on the 10th day of February, 2006, I electronically filed the foregoing DEFENDANT COBE CARDIOVASCULAR, INC.'S OPPOSED MOTION TO STRIKE SHERRI BRIANNE AND CERTIFICATE OF COMPLIANCE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John R. Olsen, Esq. Olsen & Brown LLC 8362 Greenwood Drive Niwot, CO 80503 Telephone: (303) 652-1133 Fax: (303) 652-3701 [email protected]

s/ Susan S. Sperber Susan S. Sperber Attorney for Defendant COBE Cardiovascular, Inc. Rothgerber Johnson & Lyons LLP 1200 17th Street, Suite 3000 Denver, Colorado 80202-5855 Tel: (303) 623-9000 Fax:(303) 625-9222 E-mail: [email protected]

00268261 / 1

3