Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 11/14/2005

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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. and JOHN C. DAW, O.D., P.C., a Colorado professional corporation, Plaintiffs, vs. SHOPKO STORES, INC. Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE TO PLAINTFFS' MOTION FOR VIDEO CONFERENCE TESTIMONY ______________________________________________________________________________ Defendant, through its attorneys Higgins, Hopkins, McLain & Roswell, LLC, submits the following Response to Plaintiffs' Motion for Video Conference Testimony: INTRODUCTION AND SUMMARY OF THE ARGUMENT Testimony by video may only be permitted for "good cause shown." See FED. R. CIV. P. 43. While Defendant understands that this Court may find that good cause exists to allow Dr. Gary Gerber to appear by video for the limited purpose of a F.R.E. 702 hearing, there is absolutely no evidence that good cause exists to allow Dr. Gerber to testify by video at the upcoming trial. Trial in this case was set in the summer of 2004. Plaintiffs selected as its "expert" an outof-state witness, knowing full well the trial date when they endorsed Dr. Gerber in April of 2005. It is improper for Plaintiffs to now argue, just one month before trial, that Dr.

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Gerber's appearance in person is too expensive. They chose Dr. Gerber as a witness and Defendant is entitled to examine Dr. Gerber in person. Defendant objects to Dr. Gerber's trial testimony by video as there is no showing that he is not available to appear in person at trial. In addition, as Dr. Gerber's credibility is at issue and Defendant's ability to cross-examine Dr. Gerber would be inhibited should Plaintiffs' request be granted, trial testimony by video is inappropriate in this instance. There is no good cause to allow such testimony by video conferencing at the December 12, 2005 trial. LEGAL ARGUMENT I. There must be "good cause" for video testimony to be allowed. Pursuant to FED. R. CIV. P. 43(e), a court may permit video or telephone testimony only upon a showing of "good cause." amendment clarify this requirement: The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-toface is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend trial. The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place . . . Other possible justifications for remote transmission must be approached cautiously . . . A party who could reasonably foresee the circumstances offered to justify transmission of testimony will have special difficulty in showing good cause and the compelling nature of the circumstances. See Advisory Committee Notes to FED. R. CIV. P. 43, 1996 Amendment. The Advisory Committee Notes regarding the 1996

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This Court's own Civil Practice Standards indicate that a determination of good cause will be made based upon the following factors: (1) Whether there is a statutory right to testimony by telephone; (2) The cost savings to the parties of having the testimony presented by telephone versus the cost of the witness appearing in person; (3) The availability of appropriate equipment to permit the presentation of testimony by telephone; (4) The availability of the witness to appear personally in court; (5) The relative importance of the issue or issues for which the witness is offered to testify; (6) Whether credibility of the witness is a material issue; (7) Whether the case is to be tried to the court or to a jury; and (8) Whether the presentation of testimony by telephone would unreasonably inhibit the ability to cross-examine the witness. See Practice Standards for Civil Actions from Judge Marcia S. Krieger, § II(H)(1)(c)1. II. Plaintiffs' Motion fails to comply with this Court's requirements for requesting

video testimony. The Court's Civil Practice Standards require a party to include in its motion for video testimony: "(1) The reason(s) such testimony should be taken by telephone; (2) a detailed description of all testimony which is proposed to be taken by telephone; and (3) copies of all documents or reports which will be used or referred to in such testimony." Standards, § II(H)(1)(a). Plaintiffs' Motion fails to include any description of Dr. Gerber's proposed trial testimony. Furthermore, no copies of documents or reports were provided with Plaintiffs' Motion. In addition, Plaintiffs have never explained the specific manner in which such See Practice

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The Court utilizes the phrase "by telephone," which includes "live, one-way or two-way video." See Practice Standards, § II(H)(1).

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testimony will be presented. The lack of information in Plaintiffs' Motion is sufficient to deny Plaintiffs' requested relief. III. Plaintiffs' Motion lacks any showing of "good cause" which would allow Dr.

Gerber to testify at trial by video. Plaintiffs argue that Dr. Gerber's trial testimony should be allowed by video because "of the expense involved in procuring the witness' attendance and the uncertainty in scheduling." See Motion, ¶ 11. Neither of these items is evidence of "good cause" and Plaintiffs' Motion should be denied. The "uncertainty in scheduling" reason does not establish "good cause" concerning the trial date. Plaintiffs' have known since about this trial date since its setting at the preliminary scheduling conference on July 8, 2004. Plaintiffs have had ample time to ensure the presence of their own witness at trial. Likewise, the issue of expense is not enough to establish "good cause," as Plaintiffs themselves acknowledge. See Motion, ¶ 6. As cited above, the Advisory Committee Notes to FED. R. CIV. P. 43(e) state, "a party who could reasonably foresee the circumstances offered to justify transmission of testimony will have special difficulty in showing good cause and the compelling nature of the circumstances." Plaintiffs reasonably foresaw that their hiring of an out-of-state "expert," who they endorsed as a "will call" trial witness, would require that individual to appear in person at trial and that such appearance would be more expensive than that of a local witness. Nevertheless, Plaintiffs chose their witness. They cannot be allowed now to claim that their choice of experts

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is too expensive and such testimony must be presented by video.

Such claim prejudices

Defendant and Defendant's ability to defend the claims asserted against it. IV. Defendant objects to Dr. Gerber's trial testimony by video as his credibility is at

issue and Defendant's ability to cross-examine Dr. Gerber would be inhibited by this type of testimony. As the Court is aware, Defendant filed its challenge to Dr. Gerber's opinions pursuant to F.R.E. 702. Defendant believes Dr. Gerber is not qualified to offer the opinions he expressed. The parties, at the request of the Court, have submitted a joint motion for a hearing pursuant to F.R.E. 702. Should the Court determine that Dr. Gerber might be allowed to present some testimony at trial, his credibility remains an issue for which in-person testimony is necessary. This is a trial to the jury, requiring the jury to determine witness credibility. This is especially true here, where Dr. Gerber his held out to be an expert. Video testimony would limit the jury's ability to evaluate Dr. Gerber's demeanor and credibility. Without making such an evaluation, a jury would be unable to accurately accept or reject Dr. Gerber's testimony, which is within the sole province of the jury. See McDaniel v. U.S., 343 F.2d 785 (5th Cir. 1965), cert. denied 382 U.S. 826 (1965). In addition, Defendant's ability to cross-examine Dr. Gerber will be inhibited by video testimony at trial. As noted above, Plaintiffs presented no detailed description of Dr. Gerber's testimony or copies of exhibits they intend to use or refer to during his testimony. The entirety of Defendant's cross-examination of Dr. Gerber will be driven by his direct-examination testimony. The opportunity to judge the demeanor of a witness face-to-face is accorded great

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value in our tradition. See Advisory Committee Notes to FED. R. CIV. P. 43, supra. To only way for this to occur is if Dr. Gerber appears in person at trial. V. Defendant takes no position on the Dr. Gerber's video testimony at a F.R.E. 702

hearing. Plaintiffs' Motion also requests that Dr. Gerber be allowed to testify by video at the F.R.E. 702 hearing, if any. Defendant understands that should a F.R.E. 702 hearing be held, the scheduling of such hearing may be at short notice. While Defendant would like the opportunity to examine Dr. Gerber in person at that time, it defers to the Court for a determination as to whether or not the Court would like him to appear in person at such a hearing. CONCLUSION There is no "good cause" basis for the presentation of Dr. Gerber's testimony at trial by video. Not only did Plaintiffs know of the trial date for well over a year, but Plaintiffs must have foreseen the expense that would be necessary related to Dr. Gerber's testimony at trial when they selected him as an expert. Defendant also objects to Dr. Gerber's video testimony at trial since his credibility is at issue and Defendant's ability to cross-examine Dr. Gerber would be inhibited by this type of testimony. Defendant defers to the Court for a determination as to whether or not Dr. Gerber need appear in person at a F.R.E. 702 hearing.

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Respectfully submitted this 14th day of November,

s/Torben M. Welch Stephen Hopkins Torben M. Welch of HIGGINS, HOPKINS, McLAIN & ROSWELL, LLC Attorneys for Defendant Shopko Stores, Inc. 300 Union Boulevard, Suite 101 Lakewood, CO 80228 (303) 987-9870

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANT'S RESPONSE TO PLAINTFFS' MOTION FOR VIDEO CONFERENCE TESTIMONY was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses, this 14th day of November, 2005: Gerald L. Jorgensen, Esq. Theodore J. Finn, Esq. Jorgensen, Motycka & Lewis, P.C. 709 Third Avenue Longmont, CO 80501

s/Pamela A. Freitik

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