Free Reply to Response to Motion - District Court of Connecticut - Connecticut


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Date: October 29, 2004
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Case 3:02-cv-01802-AVC Document 113 Filed 11/O1/2004 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
——-----— -— -—————~-- ~-··~ --·-— ~ ----------·-—---·—----— ··-X
PHILIP GLYNN, CIVIL NO. 3-02CVl802 (AVC)
Plaintiff`,
BANKERS LIFE AND CASUALTY CO.,
Defendant. October 29, 2004
-·----- - -——--------··——-—---——----——-----------—----- X
REPLY MEMORANDUM IN SUPPORT OF
DEFENDANT’S MOTION TO REOPEN DISCOVERY
Defendant, Bankers Life & Casualty Company ("Bankers"), offers the within
reply memorandum in support of its October 8, 2004 Motion to Reopen Discovery
(“‘Bankers’ Motion”).
ARGUMENT
Plaintiff”s objection to Bankers’ Motion asks this Court to adopt a host of double
standards, and to ignore an efficient and common sense approach to readying this matter
for trial.
First, while Plaintiff complains that Bankers’ Motion derives from Banker’s
"inability to meet the scheduling order" deadlines, Plaintiff brazenly ignores the fact that
it was Plaintiff who identified witnesses for the first time in his opposition to Bankers’
MSI, after the close of discovery. On this basis alone, discovery must be
reopened to allow Bankers the opportunity to depose these heretofore undisclosed
witnesses, and to prevent Plaintiff from reaping a benefit from avoiding his discovery
obligations.
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Case 3:02-cv-01802-AVC Document 113 Filed 11/O1/2004 Page 2 of 4
Next, Plaintiff now denies ever arguing that Bankers needs an expert to offer
evidence regarding the cause and effect of the high levels of alcohol in Decedent’s
bloodstream. Plaintiffs Opposition to Bankers’ Motion for Summary Judgment (Docket
No. 93, pgs. 6-9), Plaintiff" s Sur-Reply (Docket No. 104) and Plaintiff s Motion to Strike
(Docket Nos. 102, 103) demonstrate otherwise. Again, Bankers believes that expert
testimony is not needed to offer axiomatic evidence (as attached to Bankers’ MSI)
regarding the amount of alcohol necessarily ingested by Decedent to reach his undisputed
blood alcohol level at the time of his death, and to demonstrate that driving recklessly
while drunk negates any reasonable expectation of survival. Rather than litigate this
issue, however, Bankers is willing produce an expert on this front, and believes that
reciprocal depositions on these topics will spare the Court from unnecessary evidentiary
motions and possible appeals}
Finally, Plaintiff s prejudice argument is rendered moot by the parties’ October
27, 2004 Joint Motion to Extend Deadlines asking the Court to extend the trial
memorandum and readiness dates 60 days to allow for a decision on, among other things,
the parties’ cross motions for summaryjudgment. The remaining discovery can be
completed easily within the additional time requested by both parties.
CONCLUSION
Por the reasons set forth in Bankcrs’ Motion, and the foregoing reasons, Bankers
respectfully requests the Court to reopen discovery to allow (1) the deposition of the
Glynn Sisters, as well any other persons with knowledge identified by Plaintiff and/or the
Glynn Sisters; (2) Bankers to produce, and Plaintiff to examine, an expert witness
I Likewise, gi-enting Bankers’ Motion would essentially moot Plaintiffs Motion to Strike.
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Case 3:02-cv-01802-AVC Document 113 Filed 11/O1/2004 Page 3 of 4
regarding the cause and effect ofthe alcohol contained in Decedent’s blood at the time of
his death; and (3) Bankers to depose Plaintiff s alcohol expert, Mehdi Mostaghimi PhD.
BANKERS LIFE AI- ‘ ASUALTY ‘

B w H
JOHN SHAB · i
Federal féBar No. ct14075
Whitman Breed Abbott & Morgan
100 Fiéld Point Road
Greendvich, CT 06830
(203) 869-3800
(203) 869-1951
OF COUNSEL
ANDREW MUSCATO
SKADDEN, ARPS, SLATE, MEAGHER
& FLOM LLP
One Newark Center
Newark, NJ 07102
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Case 3:02-cv-01802-AVC Document 113 Filed 11/O1/2004 Page 4 of 4
CERTIFICATION
This is to certify that a true and correct copy of the foregoing was mailed via First
Class Mail, postage pre—paid on this the&%E1ay of October, 2004, to the following
counsel of record:
Everett H. Madin, Jr.
Riscassi and Davis, P.C.
131 Oak Street
Hartford, CT 06106
Counsel for Plaintiff Philip Glynn ( ,1»»( Jfig C Q fil
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gi/1~gi%;i,11T??~ger"°”
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