Free Order Setting Hearing on Motion - District Court of Colorado - Colorado

Case 1:01-cv-02444-JLK-CBS

Document 55

Filed 04/06/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane Civil Action No. 00-K-2285 GREGORY A. STROCK, Plaintiff, v. USA CYCLING, INC., UNITED STATES CYCLING FEDERATION, INC., and RENE WENZEL, Defendants,

Civil Action No. 01-K-2444 ERICH L. KAITER Plaintiff, v. USA CYCLING, INC., UNITED STATES CYCLING FEDERATION, INC., RENE VENZEL OLESEN (also known as RENE WENZEL), and ANGUS FRASER, Defendants.

ORDER

Oral argument on the pending summary judgment motions in these cases is scheduled for April 18, 2006 at 9:00 a.m. I have reviewed the record, the briefing and relevant legal authority in anticipation of argument. I advise the parties that I am disinclined under Rule 56 standards to rule in Defendants' favor on their statute of limitations defenses at this time. Counsel' focus at oral s argument, therefore, should be on the merits of the Plaintiffs'claims.

Case 1:01-cv-02444-JLK-CBS

Document 55

Filed 04/06/2006

Page 2 of 3

Specifically, counsel should be prepared to address the following issues: 1. Causation. The most critical obstacle for Plaintiffs in clearing the summary judgment hurdle relates to their evidence of causation. The evidence submitted by both Plaintiffs is weak in this regard. · Without evidence tending to prove Defendants' conduct more likely than not caused Plaintiffs'illnesses, Plaintiffs'claims will fail under a summary judgment standard. Assuming for the sake of argument, for example, that Dr. Bailey' email expressing his s " susp[icion]"that Strock' symptoms were the result of immunosupression resulting from s chronic exposure to steroids were deemed admissible, how would this evidence tend to establish causation " a preponderance of the evidence,"which is Strock' burden as by s Plaintiff? Similarly, how do Dr. Johnson' opinions tend toward causation beyond mere s possibility or speculation? Specific record citations to Dr. Johnson' testimony in this s regard at oral argument would be helpful to me in deciding the causation issue. · With respect to Kathy Verdeal, why, in light of the challenge to her unsworn statement, has Strock never produced a sworn statement or affidavit from her? Has she been asked and refused? Is she no longer available? · The majority of Kaiter' causation evidence purports to demonstrate the causal link s between the administration of NSAIDs and Crohn' disease. This evidence misses the s mark. Kaiter' claim, like Strock' necessarily hinges on proof of injuries caused by s s, unknown substances (viz. steroids) they claim to have unwittingly received while under the care and tutelage of Defendants, and not by analgesics, anti-inflammatories, vitamins, or other NSAIDs they were aware they were receiving. Further, claims based on disease 2

Case 1:01-cv-02444-JLK-CBS

Document 55

Filed 04/06/2006

Page 3 of 3

mechanisms triggered by known ingestion of NSAIDs may raise statute of limitations concerns, as Kaiter' assertion that he had no reason until he saw Strock' interview to s s suspect that his own ailments may have been caused by Defendants turns on Strock' s statements regarding his receipt of unknown substances like steroids, and not NSAIDs. · In general, counsel for both Plaintiffs must come prepared to argue and support precisely what evidence there is in the record which tends to demonstrate a reasonable probability, rather than a mere possibility, that substances or combinations of substances to which they were allegedly and unwittingly exposed, in fact, " caused"their injuries. 2. Daubert. While I do not intend to hear argument on the Daubert issues inherent in Defendants' challenges to Plaintiffs' experts, the parties should be aware those issues exist and that serious consideration will be given them later should Plaintiffs'claims survive summary judgment. 3. Attorney Fees. While causation issues exist in this case, neither Plaintiff' claims are s unreasonable or frivolous as pleaded or pursued. I am inclined to reject Defendants' request for Rule 11 sanctions or fees under 28 U.S.C. § 1927, and will not hear oral argument on these. Of course, counsel are free to raise other issues at next Thursday' proceedings as they s deem appropriate, but their arguments will be most helpful if they focus on my concerns.

Dated: April 6, 2006

s/John L. Kane SENIOR U.S. DISTRICT JUDGE

3