Free Supplement/Amendment - District Court of Colorado - Colorado

Case 1:03-cv-02307-RPM

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Filed 10/30/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03cv02307-RPM STANLEY C. MOWRY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.

PLAINTIFF'S SUPPLEMENTAL RESPONSE TO MOTION TO STRIKE McGUIRE AFFIDAVIT

COMES NOW Plaintiff Stanley C. Mowry ("Mowry"), by and through his counsel of record, Stefan Kazmierski of Roseman & Kazmierski, L.L.C., and for his supplemental response to UPS' argument to strike the affidavit of Joe E. McGuire, contained in "UPS' Reply to Plaintiff's Supplemental Response to Motion for Summary Judgment," states: The parties took the deposition of Joe E. McGuire on October 24, 2006. Mr. McGuire testified as follows, all of which are pertinent to the areas at issue in this lawsuit. Q. A. How much experience do you have driving trucks? Couple years off and on. I worked for DOT, a few different construction

places, hauling fuel and stuff like that. Q. A. What sort of trucks were you driving? I've drove tractor-trailers. Never doubles, just singles. Haul trucks, dump

trucks, and a tanker. McGuire Deposition, pgs. 4-5.

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Mr. McGuire also testified that he was visiting his mother at the Wagon Hound Rest Area on the evening that plaintiff Mowry stopped at that rest area. Mr. McGuire intended to drive home that evening but chose to stay in the rest area because of the weather. Q. Did you, in fact, go home that day? A. No. Q. Why not? A. Because the weather conditions were way too bad to be driving in them. Q. Do you recall that evening what the weather conditions were like? And I'm talking about the April 27th, early in the morning, about 1:00, 2:00? A. We noticed when we looked out the front windows -- and the front windows face right to the rest area. And we couldn't even see the rest area from where we were at. And, you know, it's only prob- -- maybe approximately 30 to 60 feet away. So it was -- it was pretty bad. Q. Why couldn't you see the rest area? A. Just because of the storm, the wind blowing. And winds gust up to 80, 90 miles an hour up there. And with how bad it was coming down, you couldn't -you couldn't see anything. Q. Was it snow? A. Yeah. McGuire Deposition, pgs. 6-7. Based on his years of driving and his experience driving trucks in Wyoming, Mr. McGuire agrees that Mr. Mowry acted properly by parking in the rest area to wait out the storm. Q. Okay. Now, you said you've driven lots of trucks in -- in -- in Wyoming? 2

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A. Uh-huh. Q. And tractor-trailers, as well? A. Right. Q. Based on what you saw that evening, would you have recommended driving in that kind of weather? MS. DeCOOK: Objection; foundation; competency. Q. (BY MR. KAZMIERSKI) Well, how -- how many years have you been driving? A. Since I was 18. Q. Since you were 18. And during that time, you drove tractor-trailers and -A. Dump trucks. Q. -- dump trucks? A. Plow trucks. Q. Plow trucks. And so based on your experiences -A. Uh-huh. Q. -- as a driver, would you have recommended driving that evening? MS. DeCOOK: Objection; foundation. Q. (BY MR. KAZMIERSKI) Go ahead. You can answer. A. Okay. No. Well, and I don't like to -- like to. And anytime you -- you drive, especially -- I've never drove double, but to drive with empty trailers, it's very -you know, it's really unconscious (sic), you know, not to -- you don't want to, especially with double trailers. With the wind that high, more than likely he would have been on his side. 3

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Q. So you're saying double trailers like the one that Mr. Mowry was driving that evening? A. Uh-huh. Q. And you have to say yes for the record. A. Oh. Yes. Sorry. Q. Now, do you recall whether there were any other vehicles in that -- in your -in the rest area that evening? A. The whole thing was completely packed. That's why my mom recommended for him to park at the very end, because -- just to get him so he didn't have to be driving. McGuire Deposition, pgs. 9-10. * * *

A. I just -- me, I just walked around just a little bit and seen -- and we were looking at all the vehicles. We couldn't believe how many vehicles were in there. And went in the rest area for a few. And then I walked back to the house, you know. I don't -- I wasn't really interactive as much as my mom was. McGuire Deposition, pg. 19. Mr. McGuire later provided even more information as to the nature of the storm that evening that cause plaintiff Mowry to pull off the highway. Q. Do you know -- could you see the highway from where you were located? A. That night? Q. I-80. Could you see it? 4

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A. That night? Q. Uh-huh. A. Not with the storm, you can't. Q. Did you have any idea, based on personal experience, access to the highway, what the road conditions on I-80 were that night? A. Probably very slick. Q. No. That wasn't my question. My question was, did you -- do you have any factual knowledge -A. Was I out there driving? Is that what you -Q. Were you on the highway at all that night? A. No, I was not. McGuire Deposition, pg. 20-21. With respect to the numbers of vehicle that also pulled off the highway that evening, Mr. McGuire testified: Q. How many cars would you say had stopped at the Wagonhound that night? A. I'm not really sure. Q. Can you tell me how many trucks were there that night? A. I'm not sure. I don't remember how many were exactly there. Q. If it was full up, I assume there were cars and trucks that were coming and going. Is that fair to say?

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A. Like I said, you know, I only went out once or twice, did a look around. I seen more coming in than I -- I didn't really see any going out. Q. Well, if the place was full, where were they going? A. Huh? Q. If your lot was full, where were they going? A. Obviously, nowhere. Q. So they had to leave, didn't they? A. At some point. Q. So you didn't see anyone leaving? Did you look to see if anybody was leaving, or could you -- you couldn't see from your vantage point whether they were leaving or not; isn't that true? A. Not from where I was at. McGuire Deposition, pg. 22-23. Mr. McGuire testified that cell phone service was not available at the rest stop. Q. Now, did you actually try to use your cell phone when you were up at your mom's? A. Yeah. Q. And when did you try to use it? A. A couple times. I couldn't get out. Q. How many times on Thursday? A. I don't know. Probably a couple. I don't -Q. And how many times on Friday? A. Probably the same. 6

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Q. Did you try to use it during the time frame from 2:00 to 6:00 in the morning on April 27? A. Yeah. My mom asked me to see if I can get out. McGuire Deposition, pgs. 28-29. * * *

Q. (BY MR. KAZMIERSKI) Okay. Now, as far as the phone at that rest area is concerned, how is it that you know that it was not -- as -- as you put it, it did not A. Work. Q. -- work? MS. DeCOOK: Objection; hearsay. A. Main reason is just because my mom had came back in, told me that the phone didn't work, and then we tried getting out on ours to let people use our phone instead, but it didn't work, either. Q. (BY MR. KAZMIERSKI) Okay. Okay. Now, these statements in your affidavit here, do you still stand by these statements, these four paragraphs in your affidavit? A. Yes. McGuire Deposition, pgs. 36-37. This testimony settles UPS' objections to Mr. McGuire's affidavit that his testimony includes statements not based on personal knowledge and offers conclusions and opinions. At the very least, Mr. McGuire's testimony creates genuine issues of material fact whether UPS retaliated

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against Mr. Mowry by firing him for complying with his obligation to pull off the road in adverse weather conditions. WHEREFORE, Mowry requests that this court deny UPS' motion to dismiss or for summary judgment and order that this matter proceed to trial as instructed by the 10th Circuit in this case. Dated this 30th day of October 2006. ROSEMAN & KAZMIERSKI, L.L.C. s/Stefan Kazmierski Stefan Kazmierski 1120 Lincoln St., Ste. 1607 Denver, CO 80203-3154 (303) 839-1771 Fax (303) 861-9214 Certificate of Service I hereby certify that a true and correct copy of the foregoing PLAINTIFF'S RESPONSE TO MOTION TO STRIKE McGUIRE AFFIDAVIT was filed electronically this 30th day of October 2006, with service to: Jude A. Biggs Holland & Hart, LLP 555 17th St., Ste. 3200 Denver, CO 80202-3921 [email protected] s/Stefan Kazmierski

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