Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02462-WYD-PAC

Document 111

Filed 03/27/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02462 WYD-PAC

BOBBY L. PADILLA Plaintiff, v SAN LUIS CENTRAL RAILROAD COMPANY, Defendant.

PLAINTIFF'S OBJECTIONS AND RESPONSE TO DEFENDANT'S MOTION FOR LEAVE TO DESIGNATE ADDITIONAL LAY (LAY) WITNESS Plaintiff, for the above, respectfully, by his attorney John A. "Jack" Kintzele, states: 1. Plaintiff admits paragraphs one (1) and two (2) of Plaintiff admits the first

the motion are true and correct.

sentence of paragraph three (3) and the first eight (8)words of the second sentence of paragraph three (3) are true and correct. 2. Plaintiff denies the last eight (8) words of the

second sentence of paragraph three (3) of defendant's motion. 3. As to the last eight (8) words of paragraph three (3)

of the motion, plaintiff does not deny mere "back pain before he began work for defendant."

Case 1:03-cv-02462-WYD-PAC

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4.

Defendant obviously did what it represents in

paragraph four (4) of the motion; however, it did nothing to obtain the name of the doctor who authorized those records for fourteen (14) months. 5. In paragraph four (4) of the motion, defendant again

attempts to equate mere back related pain to back injury. 6. Plaintiff admits paragraphs five (5) and six (6) of

defendant's motion. 7. As to the last sentence of paragraph seven (7), of

the motion, the medical doctor's "IMP" or impression was "pleurisy" and/or "a typical pneumonia." As the next page of

the medical records confirms, plaintiff's Exhibit 60, the cause of the back pain was "pleurisy" and/or "a typical pneumonia." 8. Why plaintiff's objection was "not anticipated" Those

(first line, paragraph seven [7]) is surprising.

medical records show a "pleurisy" and/or "a typical pneumonia" diagnosis and are, consequently, a waste of everyone's time. 9. As to Exhibits "D" and 60, while plaintiff is sure

the doctor has acknowledged the "pleurisy" and/or "a typical pneumonia" diagnosis medical records as his, it is also reasonably certain that the doctor also said he supports what is in the record, the "pleurisy" and/or "a typical pneumonia" diagnosis. It is reasonable that the doctor also said that

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after twenty-one (21) years, he has no or little memory of plaintiff. 10. This case is about permanent, disabling back injuries, not "pleurisy" and/or "a typical pneumonia". 11. The Final Pretrial Order was entered February 3, 2006, with no listing of the defendant's new proposed "lay" witness, despite the defendant's having the "pleurisy" and/or "a typical pneumonia" record for a long period of time. 12. Defendant has shown no good cause for waiting fourteen (14) months to try to list the doctor as a "lay" witness. 13. Plaintiff is surprised defendant would try to inject such non-helpful information into the case after the Final Pretrial Order, particularly where defendant has given no good cause. 14. Defendant has not carefully considered the records obtained and plaintiff's deposition, page 35, lines 1-25 and its face sheet, Exhibit 61. Respectfully Submitted, s/John A. "Jack" Kintzele_____ John A. "Jack" Kintzele, #1842 1317 Delaware Street Denver, Colorado 80204 Telephone: 303-892-6494 FAX: 303-893-2053 E-mail: [email protected] Attorney for Plaintiff

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Certificate of Mailing On this the 27th day of March 2006 a copy of the above was mailed, postage prepaid to: Bobby Padilla P.O. Box 2817 Espanola, NM 87532 On this the 27th day of March 2006 a copy of the above was electronically filed to: Evan S. Lipstein, Esq. 12600 West Colfax Avenue, #C-400 Lakewood, CO 80215 s/John A. "Jack" Kintzele_____ John A. "Jack" Kintzele, #1842

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