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

Case 1:04-cv-00456-MSK-MEH

Document 125

Filed 01/19/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-00456-MSK-OES JOHN C. DAW, O.D. and JOHN C. DAW, O.D., P.C., a Colorado professional corporation, Plaintiffs, vs. SHOPKO STORES, INC., a Delaware corporation, KEVIN C. COTTRELL, O.D., and KEVIN C. COTTRELL, O.D., P.C., Defendants. ______________________________________________________________________________ JOINT MOTION UNDER FED.R.EVID. 702 ______________________________________________________________________________ The parties, through their undersigned counsel, hereby request a determination regarding the admissibility of opinion testimony from Plaintiffs' expert Dr. Gary Gerber. Opinion 1 Opinions regarding Dr. Daw's expectations of patient retention of a optometrist moving from one location to another. Defendants' Objection to Opinion 1 This witness is not qualified by education, experience, training, skill, knowledge or any other credential to provide this opinion. Further, he has no actual, recognized, tested, or accepted methodology to support such an opinion. Opinion 2 Opinions regarding the potential financial loss as a result of Shopko interfering with Dr. Daw setting up his private practice.

Case 1:04-cv-00456-MSK-MEH

Document 125

Filed 01/19/2006

Page 2 of 4

Defendants' Objection to Opinion 2 This witness is not qualified by education, experience, training, skill, knowledge or any other credential to provide this opinion. Opinion 3 Any opinions relying on past financial information of Dr. Daw to support possible future losses.

Defendants' Objection to Opinion 3 This witness is not qualified by education, experience, training, skill, knowledge or any other credential to provide this opinion. Opinion 4 Analysis of Dr. Daw's financial data using weighted averages. Defendants' Objection to Opinion 4 This witness is not qualified by education, experience, training, skill, knowledge or any other credential to provide this opinion. Opinion 5 That 70 percent of patients would continue their care with Dr. Daw at his Longs Peak location had they had the opportunity to do so. Defendants' Objection to Opinion 5 This witness is not qualified by education, experience, training, skill, knowledge or any other credential to provide this opinion. Further, he has no actual, recognized, tested, or accepted methodology to support such an opinion.

2

Case 1:04-cv-00456-MSK-MEH

Document 125

Filed 01/19/2006

Page 3 of 4

Opinion 6 Dr. Daw should continue to perpetually retain these patients. Defendants' Objection to Opinion 6 This witness is not qualified by education, experience, training, skill, knowledge or any other credential to provide this opinion. Further, he has no actual, recognized, tested, or accepted methodology to support such an opinion. Opinion 7 That during each year, 20 percent of patients will refer another patient to Dr. Daw. Defendants' Objection to Opinion 7 This witness is not qualified by education, experience, training, skill, knowledge or any other credential to provide this opinion. Further, he has no actual, recognized, tested, or accepted methodology to support such an opinion. Opinions of Dr. Sanjay Bhagat Dr. Bhagat is an economist who accepts Gerber's opinions with comment or question, and uses them as a basis to project damages. Defendants' Objection to Opinion of Dr. Sanjay Bhagat As there is no basis to allow Dr. Gerber's opinions under the objections listed above, there is no basis to allow any of Dr. Bhagat's opinions that rely on Dr. Gerber's opinions. Time Requested for Hearing The Parties anticipate that the admissibility of these opinions can be determined in a three hour hearing. The parties do not believe that Dr. Bhagat need be called at the hearing.

3

Case 1:04-cv-00456-MSK-MEH

Document 125

Filed 01/19/2006

Page 4 of 4

Depending on the date set by the Court for the hearing, Plaintiffs may request that Dr. Gerber be allowed to be present by video conference. Respectfully submitted this 19th day of January, 2006.

s/ Gerald L. Jorgensen_____________ Gerald L. Jorgensen, Esq. Theodore J. Finn, Esq. Jorgensen, Motycka & Lewis, P.C. Attorneys for Plaintiffs 709 Third Avenue Longmont, CO 80501 (303) 678-0560

s/Stephen Hopkins Stephen Hopkins of HIGGINS, HOPKINS, McLAIN & ROSWELL, LLC Attorneys for Defendant Shopko Stores, Inc. 300 Union Boulevard, Suite 101 Lakewood, CO 80228 (303) 987-9870

4