Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01841-EWN-CBS

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Filed 06/22/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1841-EWN-CBS SANDRA BAFIA, Plaintiffs, vs. BOARD OF COUNTY COMMISSIONERS, WASHINGTON COUNTY, COLORADO, in their official and individual capacities, et al., Defendants.

PLAINTIFF'S RESPONSE TO DEFENDANTS' JOINT MOTION TO STRIKE PLAINTIFF'S EXHIBITS #6 AND #9 TO HER RESPONSE TO MOTION FOR SUMMARY JUDGMENT
Plaintiff Sandra Bafia, through her counsel David A. Lane and Marcel Krzystek of KILLMER, LANE & NEWMAN, LLP, hereby responds to Defendants' Joint Motion to Strike Plaintiff's Exhibits #6 and #9 to Her Response to Motion for Summary Judgment as follows: Defendants cite Magistrate Judge Shaffer's March 22, 2005 order denying Plaintiff's motion for an extension of time in which to submit her expert witness designation as the basis for striking Dr. Benedict's reports as exhibits to her Response to Boulder County's Motion for Summary Judgment. However, as the Court is aware, Plaintiff has filed a Motion seeking review of that order pursuant to 28 U.S.C. § 636 and FED.R.CIV.P. 72(a), and this Court has not yet entered an order resolving this outstanding issue. The Magistrate Judge's Order was clearly erroneous in light of the facts and circumstances briefed in Plaintiff's Motion for Review of Magistrate Judge's Order Pursuant to 28 U.S.C. § 636 and FED.R.CIV.P. 72(a), and Plaintiff hereby incorporates by reference all arguments raised therein. Again, Dr. William Benedict is

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not a witness who "is retained or specially employed to provide expert testimony in the case . . ." FED.R.CIV.P. 26(a)(2)(B); Dr. Benedict was Plaintiff's treating physician. Dr. Benedict is not a retained expert who can simply be "fired" or replaced; Dr. Benedict was Plaintiff's treating physician. Furthermore, Plaintiff did not choose Dr. Benedict as her treating physician, as her surgery was arranged by Defendant Boulder County. Plaintiff was therefore at the mercy of Dr. Benedict and his willingness to cooperate with her counsel and prepare the report. Dr. Benedict's inability or unwillingness to prepare the report constituted good cause to extend the deadline for the Rule 26(a)(2) disclosure, and Plaintiff should not be precluded from offering such otherwise admissible evidence in support of her Response to Defendants' Motion for Summary Judgment. In addition, Defendants' Motion to Strike effectively asks that the Court render an opinion on a dispositive motion based upon the fact that Plaintiff's Rule 26(a)(2) designation was submitted thirty days after the original due date.1 Such a position, however, runs contrary to clearly established case law in this Circuit which favors deciding cases on their merits rather than dismissing them as a result of technical defects. Union Pacific further argues that a docketing statement cannot be used to cure a defective notice of appeal; regardless, they argue, the Denver & Rio Grande Western's docketing statement was filed late and with the incorrect court. The issues argued on appeal by the Denver & Rio Grande Western were resolved by the district court's orders of November 4, 1994 and January 25, 1995. While it is true that the Denver & Rio Grande Western failed to designate these orders in its notice of appeal, Union Pacific's arguments are unavailing. Although practitioners are expected to carefully comply with procedural rules, case law interpreting those rules is founded upon a policy which favors deciding cases on the merits as opposed to dismissing them because of minor technical defects. Denver & Rio Grande W. R.R. v. Union Pac. R.R., 119 F.3d 847, 848 (10th Cir. 1997), citing
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Plaintiff did file her motion for extension "before the expiration of the period originally prescribed." FED.R.CIV.P. 6(b).

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Foman v. Davis, 371 U.S. 178, 181-82, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962) ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome . . . .") (citation omitted). Denver & Rio Grande W. R.R. and Foman are consistent with FED.R.CIV.P. 1, which provides that the federal rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." (emphasis added). THEREFORE, for all of the above and foregoing reasons, and for all of the reasons articulated in Plaintiff's Motion for Review of Magistrate Judge's Order Pursuant to 28 U.S.C. § 636 and FED.R.CIV.P. 72(a), Plaintiff requests that Defendants' Joint Motion to Strike Plaintiff's Exhibits #6 and #9 to Her Response to Motion for Summary Judgment be denied. Respectfully submitted this 22nd day of June, 2005. KILLMER, LANE & NEWMAN LLP /s/ Marcel Krzystek David A. Lane Marcel Krzystek 1543 Champa St., Suite 400 Denver, Colorado 80202 (303) 571-1000 Attorneys for Plaintiff CERTIFICATE OF MAILING I hereby certify that on June 22, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Andrew Macdonald, Esq., [email protected]; [email protected] Office of the County Attorney Office of the County Attorney PO Box 471 Boulder, CO 80306 Counsel for Boulder County and Sheriff Epp

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Sean A. Lane, Esq., [email protected]; [email protected] Jonathon A. Cross, Esq., [email protected]; [email protected] Cross & Liechty, PC 400 S. Colorado Blvd., Suite 900 Denver, CO 80246 Counsel for Washington County Michelle L. Lazar, Esq., [email protected] 600 Cherry Street, Suite 305 Denver, CO 80246 Counsel for Plaintiff KILLMER, LANE & NEWMAN LLP /s/ Marcel Krzystek Marcel Krzystek Attorneys for Plaintiff 1543 Champa St., Suite 400 Denver, Colorado 80202 (303) 571-1000 (303) 571-1001 ­ FAX [email protected]

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