Free Objections - District Court of Colorado - Colorado

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

Document 66

Filed 02/09/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01056-EWN-MEH CONNIE J. REYNOLDS, Plaintiff, v. COBE CARDIOVASCULAR, INC., Defendant.

DEFENDANT'S OBJECTIONS TO PLAINTIFF'S PROPOSED INSTRUCTIONS

Defendant COBE Cardiovascular, Inc., by its counsel and in accordance with this Court's Trial Preparation Order, submits the following objections to Plaintiff's Proposed Jury Instructions: 1. Defendant objects to Plaintiff's Proposed Instruction No. 1 because Plaintiff's

instruction is not clear as to which "internal complaints" can form the foundation for her claim. Plaintiff's instruction confirms Plaintiff's intent to offer evidence of complaints of discrimination beyond those found to be relevant in this Court's Order and Memorandum of December 16, 2005, which could confuse the jury. Defendant has also moved in limine to preclude the admission of such evidence and incorporates herein, by reference, the arguments set forth in that motion. Defendant's Proposed Instruction No. 1 should be offered instead because it accurately describes those complaints that may form the basis for Plaintiff's claims in this case.

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2.

Defendant objects to Plaintiff's Proposed Instruction No. 2 on the ground that it

does not include, as stipulations or findings by the Court, those facts which the Court found to be undisputed in the Order and Memorandum of December 16, 2005, and which were also the subject of a Rule 56(d) Motion that was granted by this Court on January 26, 2006. Defendant's Proposed Instruction No. 2 should be offered instead because it accurately states all of the stipulations agreed to by the parties or found by the Court. 3. Defendant objects to Plaintiff's Proposed Instruction No. 3, which defines the term

"pretext," on the ground that the stipulated instructions proffered by the parties do not articulate the burden-shifting standards. Furthermore, the Tenth Circuit has held that it is not appropriate to give an instruction which incorporates the McDonnell-Douglas burden-shifting standards because of potential jury confusion. Messina v. Kroblin Transportation Systems, 903 F.2d 1306, 1308-09 (10th Cir. 1990). See also, Whittington v. Nordam Group Inc., 429 F.3d 986, 997-98 (10th Cir. 2005); Sanders v. NYC Human Resources Admin., 361 F.3d 749, 758 (2nd Cir. 2004) (it is error to give burden-shifting instruction to jury because of possible jury confusion). Yet, without a burden-shifting instruction, Plaintiff's proffered pretext instruction is of little value and, in fact, is likely to confuse the jury since the jury will not understand what pretext is and at what stage pretext must be evaluated. If this Court were to permit this instruction, then Defendant respectfully requests that it be permitted to offer instructions which address the shifting burden standards and that it is the Plaintiff's ultimate burden to prove pretext. 4. Defendant objects to Plaintiff's Proposed Instruction No. 4 on the ground that the

instruction is not relevant to the issues presented in this case and could confuse the jury. Specifically, the knowledge of defendant's representatives as to plaintiff's internal discrimination 2

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complaint will be important in determining whether certain conduct was retaliatory. This instruction could mislead the jury into concluding that retaliation can exist even if the COBE representative taking the "adverse employment action" had no "actual knowledge" of plaintiff's internal complaints. Such a finding would be contrary to the law on retaliation, which requires the Plaintiff to prove actual knowledge on the part of the decision-maker. See, Petersen v. Utah Dept. of Corrections, 301 F.3d 1182-1188 (10th Cir. 2002). 5. Defendant objects to Plaintiff's Proposed Instruction No. 5 because Defendant

does not believe that there is going to be sufficient evidence presented to allow a punitive damage instruction to go to the jury. Defendant's argument and the case law supporting Defendant's position that no punitive damage instruction should be given is set forth in detail in Defendant's Trial Brief filed on February 8, 2006, and incorporated herein by reference. Dated this 9th 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.

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CERTIFICATE OF SERVICE I hereby certify that on the 9th day of February, 2006, I electronically filed the foregoing DEFENDANT'S OBJECTIONS TO PLAINTIFF'S PROPOSED INSTRUCTIONS 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]

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