Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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

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Filed 10/05/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO GEORGE M. BULL, Plaintiff, vs. UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant. PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR EXTENSION OF TIME TO FILE MOTIONS IN LIMINE 1. This case was originally filed on March 24, 2004, and has been pending before Civil Action No.: 04-ES-0560 (BNB)

this court for more than one and a half years. 2. By prior Order of this Court, the final pretrial conference is scheduled to be held

this Tuesday, October 11, 2005. 3. Pursuant to this Court's Trial Procedures Order, any motions in limine must be

submitted "no later than five business days before the final trial preparation conference." (Emphasis in original.) Thus, any motions in limine were due on or before October 4, 2005. 4. Furthermore, pursuant to this Court's Trial Procedures Order, "counsel are

advised that motions in limine are discouraged." 5. Defendant has failed to timely file pretrial motions pursuant to this Court's Order

despite having ample time to raise any appropriate issues. 6. Defendant's excuse regarding one single deposition transcript is not justification

for its total and complete disregard of this Court's Order, and certainly not an excuse regarding any other witnesses or issues.

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7.

Indeed, from the very outset of this case, defendant was fully aware of the legal

and medical issues involved in this cumulative trauma/whole body vibration case. 8. Defendant has defended on numerous prior occasions other cumulative

trauma/whole body vibration cases and has previously deposed many of the same experts who are involved in this claim, including William Muzzy. Further, the defendant has litigated through several jury trials other cumulative trauma/whole body vibration cases, and has encountered Mr. Muzzy and several of the other expert witnesses on these prior occasions. Thus, its current excuse regarding the unavailability of a single discovery deposition of Mr. Muzzy lacks good faith as an excuse for its current motion. 9. Indeed, in this case, defendant has specially retained attorney Donald Sinclair of

the law firm of Sinclair Kelly Jackson of Canonsburg, Pennsylvania, because attorney Sinclair has repeatedly deposed many of these same expert witnesses, and has made multiple unsuccessful Daubert motions in other cumulative trauma/whole body vibration FELA cases. In fact, Mr. Sinclair is on a first name basis with Dr. Eckhardt Johanning, has deposed him on numerous occasions, and even followed Dr. Johanning to a seminar in Germany. 10. The point being, that plaintiff is unfairly prejudiced by defendant's tactic of

waiting until the twelfth hour and then ignoring the Court's order regarding deadlines with respect to filing pretrial motions which could have been filed long ago. 11. Plaintiff is now in final preparations for trial, and would be unfairly prejudiced at

this late date by responding to untimely pretrial motions.

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12.

For all of the above reasons, plaintiff respectfully requests that this Court deny

defendant's motion for extension of time. Respectfully submitted, BREMSETH LAW FIRM, P.C.

By: s/ Fredric A. Bremseth Fredric A. Bremseth (#11149) Keith E. Ekstrom (#181808) 810 East Lake Street Wayzata, Minnesota 55391-1839 (952) 475-2800 And SPIES, POWERS & ROBINSON, P.C. Jack D. Robinson, #22037 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264 303-830-7090 Attorneys for Plaintiff

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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: [email protected] Mark C. Hansen Union Pacific Railroad Company 1331 17th Street, Suite 406 Denver, Colorado 80202 Fredric A. Bremseth Bremseth Law Firm 810 East Lake Street Wayzata, Minnesota 55391 Sabina Y. Chung Jack D. Robinson Spies, Powers & Robinson, P.C. 1660 Lincoln Street, Suite 2220 Denver, Colorado 80264

[email protected]

[email protected]

I certify that there are no non-CM/ECF participants in this case. BREMSETH LAW FIRM

By: /s Rebecca S. Martinson

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