Free Transcript - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-02098-REB-MJW KELLY FINCHER, by her guardian, James Fincher, on behalf of herself and all other persons similarly situated,

Plaintiff,

PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. _______________________________________________________________ REPORTER'S TRANSCRIPT TRIAL PREPARATION CONFERENCE _______________________________________________________________

Proceedings before the HONORABLE ROBERT E. BLACKBURN, Judge, United States District Court for the District of Colorado, commencing at 9:05 a.m., on the 28th day of September, 2007, in Courtroom A701, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado.

Suzanne M. Claar, Official Reporter 901 19th Street Denver, Colorado 80294-3589 (303)825-8874 PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY TRANSCRIPT PRODUCED BY COMPUTER

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APPEARANCES LEIF GARRISON, MEGAN WAPLES, ROBERT CAREY, THE CAREY LAW FIRM, 2301 East Pikes Peak Avenue, Colorado Springs, Colorado 80909, and; L. DANIEL RECTOR, FRANKLIN D. AZAR & ASSOCIATES, 5536 Library Lane, Colorado Springs, Colorado 80918, appearing for plaintiff.

APPEARANCES (Continued) CLIFTON J. LATIOLAIS, JR., CAMPBELL, LATIOLAIS & RUEBEL, 825 Logan Street, Denver, Colorado, and; BRUCE C. OTTER, 211 North Broadway, #3600, St. Louis, Missouri 63102, appearing for Defendant.

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P R O C E E D I N G S (Proceedings commenced at 9:05 a.m.) THE COURT: Good morning, and thank you. Please be

As set we open the record in open court and by telephone in case 00-CV-2098, Kelly Fincher by her guardian James Fincher on behalf of herself and all others similarly situated, plaintiff, v. Prudential Property and Casualty Insurance Company, a New Jersey corporation, Defendant. We convene to conduct a Trial Preparation Conference in anticipation of trial by jury. Commencing with the plaintiff and transitioning to the defendant, may I have your appearances, please. MR. GARRISON: Yes, your Honor. Good morning. Leif

Garrison of the Carey law firm. the Carey law firm.

I have Megan Waples with me of

Mr. Robert Carey is appearing by telephone, And we have co-counsel here Dan

also of the Carey law firm. Rector. THE COURT:

Lady, gentlemen, all good morning.

Both by

person and by telephone. The defendant, please. MR. LATIOLAIS: Good morning, your Honor. Cliff

Latiolais on behalf of the defendant, along with Bruce Otter. THE COURT: And good morning. I will direct your

attention for purposes of our agenda to my third Trial

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Preparation Conference Order October, docket No. 163, entered sometime ago now, March 15, 2006. Let's begin on page 3. This case is first set to

commence trial by jury on Monday, October 15, 2007, at 8:30 a.m. with counsel in the courtroom at 8:00 a.m. to caucus with Mrs. Kramer, my courtroom deputy clerk. We originally reserved 12 days for trial. I now see a

much more reasonable estimate of eight days in the Final Pretrial Conference Order, and hopefully we can commence and complete the trial in this case in less than even those eight days. The prospects of keeping this jury awake, if you will, given the subject matter of this trial for that length of time should be daunting to us all. MR. GARRISON: there. THE COURT: But not from the seat of your pants. Not And, your Honor, if I might interject

now, not ever, counsel, not in this court. MR. GARRISON: THE COURT: Thank you, your Honor.

You are welcome. Your Honor, if I might note on the

MR. GARRISON:

length of trial, as we have been preparing for this conference today, we have looked at the number of witnesses, and I think that the potential would be, at least from plaintiff's standpoint, that this trial might be wrapped up in five or six

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days rather than eight, and I just wanted to bring that to your attention, concomitant with your comments about how we -- the need to make sure the jury stays awake. I think that would be

our estimate, at least from plaintiff's standpoint. THE COURT: I appreciate it. I think that's a more

reasonable expectation and estimate of the time actually necessary to try this case. So that report is appreciated.

I have received prospective will-call and may-call witness lists. pronunciations. Let me scan those for problematic Tom Gibboney. Yes, your Honor. I see no others.

MR. LATIOLAIS: THE COURT: Thank you.

I had a 50/50 chance.

I will be anticipating your proposed voir dire examination questions. You will not necessarily be confined to

only those that you submit because, as you know, counsel, as I do, how dynamic and fluid voir dire examination is, and how it almost always spawns questions beyond that excogitated in advance of trial. The jury selection process, as you may or may not know, we will call 14 prospective jurors. When the dust clears for

cause and after the exercise of three peremptory challenges for each side, we will try this case with eight jurors. Do you have any questions now about the jury selection protocol for the court?

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MR. GARRISON:

None on behalf of plaintiffs, your

MR. LATIOLAIS: THE COURT:

No, your Honor. Now, who will be seated with Let me hear

Thank you.

some or all of you during some or all of the trial? from the plaintiff first, please. MR. GARRISON:

Your Honor, I believe we will have both

James Fincher and Kelly Fincher, and we will have Ms. Waples, Mr. Carey and Mr. Rector, at least for some of it. THE COURT: assistants? MR. GARRISON: Pardon me? We will have at least one Will you also have technical assistance and

person, yes, your Honor, to help us with the technical matters, yes. THE COURT: I presume that -- well, I won't prescribe

the seating arrangement for that. MR. GARRISON: But if I could, your Honor, I don't

anticipate that person sitting in the counsel table but back in the spectator area. THE COURT: Very well. The defendant.

MR. LATIOLAIS:

Thank you, your Honor. Also

It will be myself and Mr. Otter as counsel.

present will be Mr. Eugene Brown, the company representative, and our technical assistant will be Suzanne Campbell. THE COURT: Thank you. I presume no cross-objections,

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but with respect to your technical staff and your own motions during the trial, every movement, of course, attracts or distracts from the attention of the jury and the jurors. So with your technical people, as you are moving in and out, please confine your movement to recesses. not be moving about during trial. Now, counsel, if you find the need to retrieve something from the briefcase or file that's not immediately available to you, do that as quickly, quietly, and discreetly as you can. So please instruct your technical people about the That is let's

court's ruling. Now, I believe there will be presentation by video deposition; is that correct? MR. GARRISON: At least as now contemplated? We have one witness

Yes, your Honor.

that we expect to testify by video. relocated from the state. THE COURT:

Dr. Nancy Powers, who has

And has that been designated? Yes. In its entirety, yes.

MR. GARRISON: THE COURT:

And have any objections been lodged? Yes, your Honor. Then the ball is in my court.

MR. LATIOLAIS: THE COURT:

Very well.

Allocation of trial time in a six-to-eight-day trial, we should be able to commence our evidentiary presentation sometime during the afternoon of the first day of trial. plaintiff please plan accordingly, if you can. So

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And of course let's preserve essentially that final day of trial, whether it's day five, six, seven, or eight, for a charging conference, instructing the jury, and of course, your closing arguments, and at least a modicum of time on that day to commence deliberations. With respect to the admission of stipulated exhibits, the order is now that any exhibit which is admitted by stipulation or otherwise may be published or broadcast to the jury without independent or discrete request by you for leave of the court. Now, if you are like me, it was so engrained in me I always asked so I certainly won't be offended or insulted. I don't plan the use of juror trial exhibit notebooks. Most of the presentation I anticipate will be electronic, and then we will provide the jurors the paper exhibits or the other tangible exhibits for their review, use, and consideration during their solemn deliberations. If you have anticipated evidentiary issues beyond those that have been filed as motions in limine, I exhort you, consistent with my practice standards, to address those in your anticipated trial briefs. As you may or may not know, this court allows supplemental attorney-conducted voir dire examination following the extensive voir dire examination by the court that's limited to fifteen minutes per party.

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Let's avoid some of the great and deadly sins, first repetition. If you find an introduction to the question, I know

that the court or counsel has already asked you this, stop and become more general and shift the semantics of your question so you don't withdraw even a sua sponte objection. This is not the time to become case or evidence-specific, so if you find yourself saying, we expect the evidence to show or prove in this trial and proceed from there, stop yourselves. examination. Pending exigency and specific order of court, the jurors will not be sequestered during the trial. Once they That's too specific for purposes of voir dire

commence deliberations during the time that they deliberate together in the jury deliberation suite, of course, they will be ensconced and sequestered. I will sua sponte enter an order of sequestration immediately before the rendering of opening statements in this case. If for some reason after 30 years plus I forget, please

call that important matter to my attention. Opening statements limited to 30 minutes per party. will try to stay out of the examination business except to obfuscate confusion or to eschew obfuscation or to avoid plain error. Both will be acts of self-defense. Resist what I know to be almost the irresistible occasionally and that is to speechify your objections in the I

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presence of the trier of facts. code. We have plenty of jargon.

We are lawyers.

Let's talk in

You can cite the rule to me. Please note

You can slap a label on it; hearsay, relevance.

that I do not consider an objection on relevance, which implicates Rule 401 and 402, to automatically include a Rule 403 objection, so please understand that. If you are objecting on

relevance and you really mean 403, you will have to take the next step and specify that. If you are objecting on foundation, you know, foundation is not a common word to the state or Federal Rules of Evidence. If it's obvious, I will probably get it. If not, I

will probably ask you to expatiate, but succinctly and tersely. If you are going to object on the basis of speculation, please note I consider that lack of personal knowledge under Rule 602. And please be sensitive of the special relationship between hearsay and lack of personal knowledge. If you are

smart, when you interpose one, you will interpose the other. Many times what you think is a hearsay objection, the reiteration of an out-of-court statement really doesn't involve a repetition of the statement at all but implicates the knowledge of the witness to make the statement. So your 801(c)

hearsay objection is really a lack of personal knowledge under Rule 602. I really disdain bench conferences and sidebar

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conferences. those.

We will do everything in our power to minimize

If you have an exigency that warrants a request for Let me explain to you how dire that

bench conference, make it. must be metaphorically.

Posit hypothetically that you have just

lost your dominant arm at the elbow and you are unable to stop the bleeding by any other means than a bench conference. those circumstances, by all means request it. If it's not that serious, and most of the time it's not, we are not going to interrupt the trial with a high-dollar jury idling to take up that matter. Now, what I will probably do is give you the benefit of the doubt with respect to your first request, but if it proves to be a dud I wouldn't bother asking again. respectfully denied. It's likely to be In

So be very discreet with respect or

request for bench conferences. Now, pending before the court is a Motion for Partial Summary Judgment. I am working on that even as we speak. I

have reviewed, at least on a cursory basis, the defendant's five motions in limine, some of which were filed perhaps not in time to afford a response within twenty days under our local Rule 7.1(c). Certainly there will be no opportunity for reply. Hopefully there will be a reasonable opportunity for this court to have some time other than on a weekend to resolve those motions in limine. On Monday I commence a two-week medical malpractice

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case so my time -- coming off of a four-week medical malpractice case, so my time is indeed limited between now and the time of trial. That's what I have on my mind. Additional business by the plaintiff? MR. GARRISON: of any at this time. THE COURT: defendant? MR. LATIOLAIS: THE COURT: No, your Honor. Thank you. All right. Thank you. Or by the Thank you, your Honor. I am not aware

You are welcome.

Lady, gentlemen, I look

forward to seeing you on the commencement of trial in a couple of weeks, October 15th. Until then, as concerns this case and trial, we are in recess. Please close the record, and bidding our participant by Thank you.

telephone a good day. MR. CAREY:

Thank you, your Honor.

(Proceedings concluded at 9:20 a.m.) REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. Dated at Denver, Colorado, this 24th day of April, 2008. s/Suzanne M. Claar