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

Case 1:04-cv-00560-OES-BNB

Document 53

Filed 10/05/2005

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00560-OES-BNB

GEORGE M. BULL, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

DEFENDANT'S REPLY TO PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR EXTENSION OF TIME TO FILE PRE-TRIAL MOTIONS

COMES NOW, Defendant, Union Pacific Railroad Company, by and through its undersigned counsel, and hereby files its Reply to Plaintiff's Brief in Opposition to Defendant's Motion for an Extension of Time to File Pre-Trial Motions, and as grounds therefore, states as follows: 1. Mark C. Hansen, Counsel for Defendant, misread that portion of the

Court's Trial Procedure Order which states that motions in limine must be submitted "no later than five business days before the final trial preparation conference." Mr. Hansen misread the Court's Trial Procedure Order to require all motions in limine to be filed five days, not five business days, before the final trial preparation conference. As such, although Mr. Hansen mistakenly believed that the motions in limine were due on October 6, 2005, these motions were actually due on October 4, 2005.

1

Case 1:04-cv-00560-OES-BNB

Document 53

Filed 10/05/2005

Page 2 of 4

2.

In order to file its Daubert motions in limine, Defendant must have a copy

of the deposition which it took of Plaintiff's expert, William Muzzy. This deposition was taken on August 18, 2005, in New Orleans, Louisiana. 3. As a result of the hurricanes which struck New Orleans, Defendant has

been unable to obtain a copy of this deposition from the court reporter. The court reporter who took this deposition may be able to provide Defendant with a copy of Mr. Muzzy's deposition early in the week of October 10, 2005. 4. It will be impossible to file a motion in limine regarding Mr. Muzzy's

testimony in this case without a copy of Mr. Muzzy's deposition in this case. Defendant cannot use a deposition of Mr. Muzzy taken in another case to file a Daubert motion in this case, as suggested by Counsel for Plaintiff. 5. In addition, Defendant will file a motion in limine regarding the testimony of

Dr. Johanning. Defendant did not receive a copy of the deposition of Dr. Johanning until Friday, September 30, 2005, due to the court reporter's delay in transcribing this deposition. Dr. Johanning's testimony is technical in nature and Defendant is working diligently to review this deposition and research and draft an appropriate Daubert motion regarding his testimony. Defendant cannot use a deposition of Dr. Johanning taken in another case to file a Daubert motion in this case, as suggested by Counsel for Plaintiff. 6. In addition, Defendant will file a motion in limine regarding the testimony of

Tyler Kress. Defendant scheduled the deposition Tyler Kress and got approximately half-way through this deposition when Dr. Kress announced he had a scheduling

2

Case 1:04-cv-00560-OES-BNB

Document 53

Filed 10/05/2005

Page 3 of 4

conflict and had to leave. Counsel for Plaintiff has been unable to give Counsel for Defendant any dates to complete the deposition of Tyler Kress. This deposition needs to be completed before a Daubert motion can be filed. Defendant cannot use a

deposition of Mr. Kress taken in another case to file a Daubert motion in this case, as suggested by Counsel for Plaintiff. WHEREFORE, Defendant, Union Pacific Railroad Company, hereby requests an extension of time up to and including Monday, October 17, 2005, in which to file its pretrial motions or such extension of time as this Court deems appropriate. Respectfully submitted this 5th day of October, 2005. Respectfully submitted,

_s/Mark C. Hansen_______ MARK C. HANSEN Union Pacific Railroad Company 1331 17TH Street, Suite 406 Denver, CO 80202 (303) 964-4583 FAX: (303) 964-4585

3

Case 1:04-cv-00560-OES-BNB

Document 53

Filed 10/05/2005

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this 5th day of October, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Donald C. Sinclair, II SINCLAIR KELLY JACKSON REINHART & HAYDEN 501 Corporate Drive Suite 200 Canonsburg, PA 15317 Sabina Y. Chung, Esq. Jack D. Robinson, Esq. SPIES, POWERS & ROBINSON, P.C. 1660 Lincoln Street, Suite 2220 Denver, CO 80264 Fredric A. Bremseth, Esq. Thomas W. Geng, Esq. BREMSETH LAW FIRM 810 East Lake Street Wayzata, MN 55391

[email protected]

[email protected]

[email protected]

I certify that there are no non CM/ECF participants in this case.

_s/Mark C. Hansen_______ MARK C. HANSEN Union Pacific Railroad Company 1331 17TH Street, Suite 406 Denver, CO 80202 [email protected]

4