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

Case 1:04-cv-00685-EWN-OES

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No: 04-cv-0685-EWN-OES JASON STEINBACH, Plaintiff, v. OMNI PROPERTIES, Defendant. ______________________________________________________________________________ PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S SUBMISSION OF SUPPLEMENTAL INFORMATION ______________________________________________________________________________ Plaintiff, Jason Steinbach, by and through his undersigned attorney, respectfully files this reply to defendant's response to plaintiff's submission of supplemental information. INTRODUCTION Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing has happened. --Sir Winston Churchill Defendant appears to be terrorized by the truth. Omni Properties simply does not want the Court to find out -- in any form -- what Dr. Mead meant when he said that Jason Steinbach was unable to perform work in January of 2003. Omni Properties has built its entire case on the false assertion that Jason Steinbach was so disabled that he could not perform the work of an apartment complex groundskeeper. In its construction of this argument, Defendant somehow had to climb over a mountain of its own documents stating that Mr. Steinbach was doing a "great job." It has attempted to climb that mountain by misleading the Court as to the opinion of Mr. Steinbach's psychologist about Mr. Steinbach's ability to work, and by keeping the truth of the psychologist's

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opinion from the Court. That is the sole purpose of Defendant's Response to Plaintiff's Submission of Supplemental Information. Despite Omni's efforts, when we get to the top of the mountain, and the view is unobstructed, we must see that the truth is, and Dr. Mead will testify that Jason Steinbach was capable in January of 2003 of working in a job in which his disability was accommodated. See Supplemental Expert Report of Dr. Michael Mead, attached hereto as Exhibit 1. Specific responses to Defendant's assertions follow. RESPONSES TO ASSERTIONS REGARDING SUPPLEMENTAL EXPERT AUTHORITY 1. Defendant claims "Neither the federal rules nor any local rules authorize Plaintiff to See paragraph 1of Defendant's Response to Plaintiff's Submission of

file the submission."

Supplemental Information, at p.1. Plaintiff Has Duty to Supplement Disclosures In fact, federal rules require the parties to supplement disclosures, including disclosures of expert witnesses: A party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances: (1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through 2

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a deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due. Fed.R.Civ.P., Rule 26(e) (emphasis added). The rule requires that the disclosure be made in accordance with Rule 26(a)(3), which requires disclosure no later than thirty (30) days before trial: Unless otherwise directed by the court, these disclosures must be made at least 30 days before trial. Fed.R.Civ.P., Rule 26(a)(3). Expert Reserved Right to Supplement Further, Omni Properties itself admitted that Plaintiff's expert reserved the right to supplement his report. Plaintiff Has Right to Supplement Authority In addition, federal rules allow for the submission of supplemental authority up to five (5) days before trial. D.C.COLO.LCiv7.1E. No mention is made, in the rule, of a requirement to seek Court approval. 2. Defendant claims: "[Plaintiff] has no right to supplement his expert's report after

the deadlines set by the Court." See paragraph 7 of Defendant's Response to Plaintiff's Submission of Supplemental Information, at pp. 2-3. Plaintiff Has Duty to Supplement Disclosures In fact, as noted above, federal rules require the parties to supplement disclosures, including disclosures of expert witnesses. See Fed.R.Civ.P., Rule 26(e). The rules require that the disclosure be made in accordance with Rule 26(a)(3), which requires disclosure no later than 3

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thirty (30) days before trial. Further, Omni Properties itself admitted that Plaintiff's expert reserved the right to supplement his report. In addition, federal rules allow for the submission of supplemental authority up to five (5) days before trial. D.C.COLO.LCiv7.1E. Defendant Admits No Deadline Was Set In fact, there was no deadline for the filing of supplemental or rebuttal expert reports by Plaintiff in this case, as pointed out by Defendant. Specifically, Defendant Omni admitted that "there does not appear to be any current deadline for Plaintiff's disclosure of supplemental/rebuttal expert witnesses or reports." See paragraph 4.b.3 (page 3) of the Preliminary Pretrial Order, which was authored entirely by Defendant. 3. Defendant claims that "The Submission is untimely...." See paragraph 6 of

Defendant's Response to Plaintiff's Submission of Supplemental Information, at p.2. In fact, there is no deadline in any document and there is no deadline in any rule for filing a supplemental disclosure to an expert report, with the exception of Rule 26(a)(3), which requires disclosure no later than thirty (30) days before trial. RESPONSE TO CLAIMS ABOUT "MEMORY INCOMPETENCE" 4. Defendant claims it established "memory incompetence as an undisputed fact, as a

matter of law." See paragraph 11 of Defendant's Response to Plaintiff's Submission of Supplemental Information, at p.3. In fact, Defendant has not established that Mr. Steinbach is unable to testify in his own behalf as a matter of law. The applicable rule of evidence states that "every person is competent to testify" unless the contrary is established under the rules of evidence or state law. Federal Rules of Evidence, Rule 601. Defendant has done neither. 4

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In reality, Defendant Omni Properties is wrongfully attempting to have the Court rule on what is, in reality, a motion in limine in a Summary Judgment Reply. Not only is it inappropriate to file a motion in limine in the guise of a summary judgment reply, but, defendant fails to meet the requirements for disqualifying Mr. Steinbach as a witness in that reply. Further, Defendant misuses the summary judgment procedure in an attempt to deprive Mr. Steinbach of the opportunity to respond to its motion in limine by framing it as a reply and arguing that there should be no sur-reply. In addition, the only point made with regard to Mr. Steinbach's memory in Defendant's Motion for Summary Judgment was that Mr. Steinbach "forgets things." That is a far cry from proving that he cannot testify in his own behalf. Further, in his response to Defendant's Motion for Summary Judgment, Plaintiff did deny many assertions of memory problems. See, e.g. paragraph 18 in Plaintiff's Response to Defendant's Motion for Summary Judgment, at p. 6. RESPONSES TO RENEWED MOTION TO DENY SUR-REPLY 5. Defendant claims: "Plaintiff previously filed an untimely Motion for Leave to File

Sur-Reply to Defendant's Motion for Summary Judgment, accompanied by a Sur-Reply to Defendant's Motion for Summary Judgment..." See paragraph 3 of Defendant's Response to Plaintiff's Submission of Supplemental Information, at p.2. In fact, there is no time limitation set out in the rules or procedures applicable to this case for filing a sur-reply. 6. Defendant claims that "the issue of Plaintiff's memory incompetence is not new"

stating that the issue was raised in its Motion for Summary Judgment ("In its Reply, Omni again relied upon Plaintiff's undisputed memory impairment as evidence of Plaintiff's memory 5

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incompetence." Emphasis added.) See paragraph 11 of Defendant's Response to Plaintiff's Submission of Supplemental Information, at p.3. In fact, there is not one reference in Defendant's Motion for Summary Judgment to the argument that Jason Steinbach is incompetent to testify on his own behalf. Just the opposite, Defendant Omni relies upon the testimony, and memory, of Jason Steinbach, in the following paragraphs in the "Undisputed Facts" section of its Motion for Summary Judgment: 20, 25, 34, 43, 48, 51, 58, 59, 60, 61, 62, 65, 68, 70, 74, 76, 77, 78, 79, 80, 83, 86, 90, 94, 95, 96, 104, 117, 120, 121, 144, and 6

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145. In addition, Defendant Omni relies upon the testimony, and memory, of Jason Steinbach, on the following pages of its argument in its Summary Judgment Motion: 39, 40, 41, 44, 45, and 46. In its Reply brief, Omni relies upon Mr. Steinbach's memory and testimony in the following paragraphs of its factual recitation: 27, 33, 51, 62, 65, 68, 80, 86, 99, 100, and 144. If Mr. Steinbach' s memory is good enough to support Defendant's motion for summary judgment, it should be good enough to support Plaintiff's motion in opposition.1 As noted above, the only point made with regard to Mr. Steinbach's memory in Defendant's Motion for Summary

Likewise, in its briefs supporting its motion for summary judgment, Omni relies upon many transcriptions of deposition testimony and documents it seeks to have excluded when relied upon by Plaintiff. For example, Omni objects to the Plaintiff's use of deposition testimony of Donovan Vigil (objection based upon "relevance," "hearsay," and "prejudice"). However, Omni utilizes the deposition testimony to bolster its own case. See paragraphs 26, 115, 117, 119, 120, 121, 122, 124, 125, 126, 127, 129, and 134 in Defendant's Reply Brief ("II. Reply Concerning Undisputed Facts"). 7

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Judgment was that Mr. Steinbach "forgets things." Again, that is a far cry from proving that he cannot testify in his own behalf. 7. Defendant claims that Plaintiff's Sur-Reply is "improper rebuttal that is untimely,

improper and prejudicial and also inadmissible." See paragraph 14 of Defendant's Response to Plaintiff's Submission of Supplemental Information, at pp. 4-5. Referring to the last point, Defendant Omni attached a new affidavit to its Reply Brief. See Exhibit A-80 to Defendant's Reply in Support of Motion for Summary Judgment. The rules specifically allow a Court to permit a party to respond to an affidavit filed in support of a motion for summary judgment. See Fed.R.Civ.P, Rule 56(e). In addition, as noted above, Defendant raised a number of new issues in its Reply, including the improper issue of Mr. Steinbach's competence to testify in his own behalf. Mr. Steinbach should be allowed to respond to those issues. CONCLUSION In short, Plaintiff has a right, and a duty, to supplement his expert's report, so long as the supplementation is done no later than 30 days prior to trial. In addition, even Omni admitted that there was no deadline established for Mr. Steinbach to supplement his expert report. Further, as to Omni's renewed request for the Court to strike Plaintiff's sur-reply, there was no deadline for the filing of a sur-reply; the rules contemplate and allow the Court to grant leave for a party to respond to a new affidavit filed in support of a summary judgment motion; and Mr. Steinbach should be allowed to respond to the new arguments raised by Defendant in its reply, chief among them, that he is incompetent to testify in his own behalf.

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DATED this 25th day of August, 2005.

Respectfully submitted,

s/Patricia S. Bangert _______________________ Patricia S. Bangert, Esq. Bangert & Associates, LLC 3773 Cherry Creek North Drive Suite 575 Denver, CO 80209 (303) 228-2175 Fax: (303) 399-6480 E-Mail: [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on August 25, 2005, a true and correct copy of the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: Colleen Meyers Rea

s/Patricia S. Bangert
_______________________________

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