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

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

Document 109

Filed 11/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-00456-MSK-OES JOHN C. DAW, O.D. JOHN C. DAW, O.D., P.C., a Colorado professional corporation, Plaintiffs, v. SHOPKO STORES, INC., a Delaware corporation, Defendant. ______________________________________________________________________________ REPLY IN SUPPORT OF MOTION FOR VIDEO CONFERENCE TESTIMONY PURSUANT TO FED. R. CIV. P. 43 ______________________________________________________________________________ Plaintiffs John C. Daw, O.D. & John C. Daw, O.D., P.C. by and through counsel, Gerald L. Jorgensen and Theodore J. Finn of JORGENSEN, MOTYCKA & LEWIS, P.C., respectfully file and serve this Reply in Support of Motion for Video Conference Testimony Pursuant to Fed. R. Civ. P. 43, as follows: 1. Good cause and compelling circumstances exists for allowing video conference testimony at both the 702 hearing, should it occur, and at trial. 2. Plaintiffs complied with the Court's Civil Practice Standards as outlined below: a. The reasons for presenting video conference testimony as opposed to live testimony are fully outlined in Plaintiffs' Motion. See Motion, ¶¶ 2-4, 11. b. Defendant is in possession of Dr. Gerber's report, which includes all opinions to which he will testify.

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c.

Concerning Dr. Gerber's testimony, the only documents which will be referenced by Plaintiffs in a 702 hearing or at trial have been provided to Defendant.

3. Defendant admits that there may be good cause for allowing Dr. Gerber to appear by video conference at a 702 hearing. The same good cause exists for such allowance at trial. 4. Defendant outlines the Court's factors used in analyzing whether good cause exists. As applicable under the present circumstances, those factors generally weigh in favor of allowing video conference testimony: a. Fed. R. Civ. P. 43(a) allows for video conference testimony. b. The cost savings to Plaintiffs would be great compared to the cost of having this witness appear personally. c. Appropriate equipment and technology exist to permit the presentation of video conference testimony. d. As an expert witness, Dr. Gerber's opinions are relevant and important to Plaintiffs' expected patient retention rates and patient referral rates. e. Credibility is not a determinative issue. The use of live video testimony does not inhibit the jury's ability to assess witness credibility. See e.g. Kroupa v. Industrial Claim Appeals Office of State of Colo., 53 P.3d 1192, 1196 (Colo. App. 2002) (In approving the use of video testimony by an Administrative Law Judge, the court repeated the ALJ's statement that "`credibility and persuasiveness ... is not determined by who is present in the [court]room'" and further declaring that "video

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teleconferencing technology was superior... in that it allowed the ALJ not only to hear claimant's inflection, but also to see her expression and gestures." f. The presentation of video conference testimony would not limit or inhibit Defendant's cross-examination in any way. 5. Because all issues identified in Defendant's response are self evident, easily discernable without such filing, and sophistry of the facts and documents provided underlying Plaintiffs' Motion, Defendant has needlessly wasted the parties' time and resources in violation of the Federal Rules of Civil Procedure. WHEREFORE Plaintiffs request the Court find good cause and Order Plaintiffs be allowed to present the testimony of Dr. Gerber for the F.R.E. 702 hearing, should it occur, and the trial, and for any other and further relief the Court deems just and proper. Respectfully submitted November 16, 2005. __/s/ Gerald L. Jorgensen_______________ Gerald L. Jorgensen Theodore J. Finn JORGENSEN, MOTYCKA & LEWIS, P.C. 709 Third Avenue Longmont, Colorado 80501 (303) 678-0560 (303) 678-1164 facsimile Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on November 16, 2005, I served a true and correct copy of the foregoing in the United States Mail, postage prepaid, sent via courier service, by e-mail or ECF to the following: Stephen Hopkins, Esq. Torben Welch, Esq. HIGGENS, HOPKINS, McLAIN & ROSWELL, LLC. 300 Union Boulevard, Suite 101 3

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Lakewood, CO 80228 __/s/ Gerald L. Jorgensen_______________

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