Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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

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Filed 03/16/2006

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-2462-WYD-PAC BOBBY PADILLA, Plaintiff, v. SAN LUIS CENTRAL RAILROAD COMPANY, Defendant. ______________________________________________________________________________ DEFENDANT'S MOTION FOR LEAVE TO DESIGNATE ADDITIONAL LAY WITNESS ______________________________________________________________________________ Defendant, San Luis Central Railroad Company, moves this Court for leave to designate James D. McCafferty, M.D., as an additional "may call" lay witness to testify at the trial of this action. As grounds for this motion, Defendant states: 1. The undersigned certifies that he has conferred with opposing counsel concerning

this motion, and opposing counsel objects to the relief requested herein. 2. Plaintiff in this action seeks damages pursuant to the Federal Employers Liability

Act for injuries to his back which he claims to have suffered while in the employ of Defendant. 3. Plaintiff was first employed by Defendant in December, 2000. Plaintiff has

denied any complaints of back injury or pain before he was employed by Defendant. 4. In late 2004, counsel for Defendant sought records from treating physicians who

had been identified by Plaintiff. Among the physicians identified by Plaintiff was Gregory F. McAuliffe, M.D. On September 29, 2004. Counsel for Defendant requested records from Dr. 1

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McAuliffe. On November 1, 2004, counsel for Defendant received records from the San Luis Valley Medical Clinics, accompanied by the notation that Dr. McAuliffe was no longer on staff. Among the records obtained at that time was a record dated June 18, 1985, which has been designated as Trial Exhibit D. This record, among others, controverts Plaintiff's denial of back pain before he began to work for Defendant. A copy of this record was furnished to Plaintiff's counsel on November 4, 2004. 5. In the final Pre-Trial Order (Document 91) entered on February 3, 2006, the June

18, 1985 record was designated as Defendant's Exhibit D. At the time of pre-trial conference, Magistrate Judge Coan directed the parties to file Rule 26(a)(3) objections by February 24, 2006.

6.

Plaintiff filed his "Objections as to Defendant's Exhibits" on February 8, 2006

(Document 99). In that document, he objects to Exhibit D as follows: "Exhibit D - Hearsay, not relevant, collateral source rule, prejudicial of value outweighs its legitimate evidentiary use." 7. Upon receipt of the foregoing objection, which had not been anticipated, counsel

for Defendant sought to locate the author or Exhibit D. Through conversations with personnel at the San Luis Valley Medical Clinics, it was learned that the probable author was a Dr. James McCafferty. Upon checking with the Colorado Medical Licensing Board, it was learned that James Duff McCafferty was licensed as a medical doctor in Colorado in 1985, but that his license lapsed in 1987. Through the use of Google, Dr. James D. McCafferty was located in Rapid City, South Dakota. His address and phone number were promptly furnished to counsel for Plaintiff. 8. Dr. McCafferty has told counsel for Defendant that Exhibit D is a medical record

prepared by him, and the history stated in the record is what the patient­the Plaintiff in this case­told Dr. McCafferty in 1985. 2

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9.

Plaintiff's history of back pain is important to rebut his assertion that his work for

Defendant is the sole source of his back pain. Under the FELA, apportionment of injuries between the federal employer and other causes is permitted.. Saver v. Burlington Northern Railroad Co.., 106 F.3d 1490, 1493-95 (10th Cir. 1997). 10. Counsel for Defendant had not anticipated Plaintiff's objection to what is

obviously part of his medical history, and has been known to Plaintiff's counsel for more than one year. 11. Dr. McCafferty would testify very briefly at trial, either by deposition or by

electronic transmission. The substance of his testimony would be as set forth in Paragraph 8 of this Motion. 12. Plaintiff's counsel has been aware of this medical record for more than one year,

and cannot claim to be surprised by its content. The testimony of Dr. McCafferty at trial will be exceedingly brief, and it will cause no delay in the trial to add him to Defendant's list of "may call" witnesses. 13. The largely spurious objection of Plaintiff to the introduction at trial of one or his

own medical records constitutes good cause for the addition of Dr. McCafferty to Defendant's list of "may call" witnesses.

s/ Evan S. Lipstein Evan S. Lipstein Law Offices of Evan S. Lipstein PC 12600 West Colfax Avenue, Suite C-400 Lakewood, Colorado 80215 Telephone: 303-232-5151 Fax: 303-232-5161 Email: [email protected] Attorneys for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 16, 2006, I electronically filed the foregoing DEFENDANT'S MOTION FOR LEAVE TO DESIGNATE ADDITIONAL LAY WITNESS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Jack Kintzele, Esq. [email protected] Attorney for Plaintiff s/ Evan S. Lipstein Evan S. Lipstein Law Offices of Evan S. Lipstein PC 12600 West Colfax Avenue, Suite C-400 Lakewood, Colorado 80215 Telephone: 303-232-5151 Fax: 303-232-5161 Email: [email protected] Attorneys for Defendant

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