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

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UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PHILIP GLYNN, :
Plaintiff, :
v. Civil N0. 3:02CV1802 (AVC)
BANKERS LIFE AND CASUALTY »
COMPANY, :
Defendant : OCTOBER 18, 2004
PLAINTIFF’S REPLY TO DEFENDANT’S MEMORANDUM
OF LAW IN OPPOSITION TO PLAINTIFF’S
MOTION TO STRIKE
The defendanfs opposition to plaintiffs Motion to Strike asks this Court to take
judicial notice of unsupported facts and scientific formulas that in no way constitute admissible
evidence in a motion for summary judgment. Indeed, the defendanfs reply brief to which the
plaintiff s Motion to Strike is directed, is simply a compendium of fabricated facts, simulated
science and extrajudicial expert opinion.
This case has been pending before this Court since it was removed on October l0,
2002, approximately two (2) years ago. Since then, there have been numerous extensions of I
time for scheduling orders and other motions. At no time, however, has the defendant sought
to take any deposition other than the deposition of the decedent’s father, Philip Glynn. The
defendant has never sought to take any depositions of the plaintiffs experts or other witnesses
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to this matter. In addition, at no time during the pendancy of this matter, has the defendant
sough to disclose any experts of its own on any issue. Now, however, the defendant seeks to
dump inadmissible material, including expert opinions, fabricated facts and other extraneous (
material before the Court through the vehicle of judicial notice. This completely tums the
notion of a motion for summary judgment on its head and cannot be permitted. ’
Rule 201 of the Federal Rules of Evidence states that a Court may take judicial notice
of certain facts where the fact is "not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction ofthe trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
Here, not only is the defendant asking the court to take judicial notice of facts and inferences
that are unsupported by affidavits, but also questionable scientific research and conclusions
based on interpretations and opinions gleaned, in part, from the internet. These facts and
conclusions do not consist of federal regulations or other judicial or governmental sources that
cannot be questioned. See, e. g., Kaggen v. [RS., 71 F.3d 1018, 1023 n. 2 (2d Cir. 1995) (citing
Texas & Pac. Ry. C0. v. Pottoryf 291 U.S. 245, 254 n.4 (1933)). Consequently, neither the 1
"facts" suggested by the defendant nor its scientific conclusions satisfy the Rule 201.
It is obvious that if the defendant felt that the infomation it has offered in its reply brief
and its memorandum in opposition to the plaintiffs motion to strike the reply brief, was
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somehow necessary to a determination of the case, the defendant should have disclosed experts
and taken depositions in accordance with the scheduling order.
It is also noteworthy that the defendant does not suggest that the motion for summary
judgments cannot be decided because of outstanding factual issues. Indeed, its own corporate —
designee, Robert Krol, states that there are no factual issues relevant other than the blood r
alcohol content of the decedent. Now, in its memorandum of law in opposition to the
plaintiffs motion to strike, the defendant, yet again, seeks to insert more unfounded, untested
and undisclosed opinions, materials and facts to the Court. Not only is this attempt of the
defendant improper under the Rules of Civil Procedure, but it is also an improper attempt to
prejudice this Court in deciding the cross motions for summary judgment.
Accordingly, for all the above reasons, the plaintiff respectfully requests that the Court
grant its motion to strike the defendant’s reply brief.
PLAINTIFF,
B5/____...__
Everett H. Madin, Jr. ~
Federal Bar No.: CT 12297
RISCASSI & DAVIS, P.C.
131 Oak Street
Hartford, CT 06106
Ph: 860-522-1196
Fax: 860-246-5847
I
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CERTIFICATION
This is to certify that a copy of the foregoing Memorandum of Law has been mailed,
first-class postage prepaid, to counsel of record this **th day of September, 2004, more
specifically, to the following:
Andrew Muscato, Esq.
Skadden Arps Slate Meagher & Flom, LLP ;
Four Times Square t
New York, NY 10036-6522
John T. Shaban, Esq.
Maciej A. Piatkowski, Esq.
Whitman Breed Abbott & Morgan LLC
100 Field Point Rd.
Greenwich, CT 06830
Everett H. Madin, Jr.
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