Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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

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Filed 11/09/2005

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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. ______________________________________________________________________________ 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 Motion for Video Conference Testimony Pursuant to Fed. R. Civ. P. 43, as follows: 1. Trial in this matter is set for December 12, 2005. 2. Plaintiffs intend on calling Dr. Gary Gerber, who resides in Franklin Lakes, New Jersey, as an expert in this civil action. 3. Defendant has challenged Dr. Gerber's expert opinions pursuant to Daubert and F.R.E. 702. Consequently, Dr. Gerber's testimony may be necessary at both trial and in a pretrial hearing on Defendant's F.R.E. 702 motion. Thus, Plaintiffs are requesting

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permission to allow Dr. Gerber to appear at both the F.R.E. 702, if it occurs, and trial in this matter via video conferencing. 4. It is estimated that travel expenses for Dr. Gerber for a single appearance would be in excess of $4,500.00. See "Exhibit A" E- mail regarding travel expenses. 5. Federal Rule of Civil Procedure 43(a) provides that "for good cause shown in compelling circumstances and upon appropriate safeguards, [a court may] permit presentation of testimony in open court by contemporaneous transmission from another location." Fed.R.Civ.P. 43. 6. While expense alone may not be enough to establish good cause, coupled with the uncertainty of the trial or pretrial hearing schedule, good cause exists to allow testimony through video conferencing. See Trial Preparation Order ("Several civil trials are frequently set for the same date in anticipation of settlement.") 7. The advisory committee's note indicates the opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Fed.R.Civ.P. 43 advisory committee's note (1996 Amendment). 8. Even before the Federal Rules were amended in 1996, "federal trial courts have repeatedly, in civil cases, taken testimony by telephone and closed circuit television. The jury has never had any difficulty in evaluating such testimony." United States v. Gigante, 971 F.Supp. 755, 758 (E.D.N.Y.1997). 9. "[The] interaction in the video conference results in far superior observation of demeanor for credibility assessments than judges and juries experience when observing a witness

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who is testifying by video deposition, a practice that long has been accepted by the courts." U.S. v. Navarro, 169 F.3d 228, 242 (56th Cir.1999) (Politz, J. dissent). 10. Finally, the rules of civil procedure favor allowing testimony through video conferencing. Fed.R.Civ.P. 1 ("[The Rules] shall be construed and administered to secure the just, speedy and inexpensive determination of every action.") (emphasis added). 11. Because of the expense involved in procuring the witness' attendance and the uncertainty in scheduling good cause exists in these compelling circumstances to allow testimony through video conferencing. 12. Plaintiffs contacted Defendant pursuant to D.C.COLO.LCivR 7.1(A). Plaintiffs are authorized to state counsel for Defendant may oppose the motion upon review. 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 9, 2005. __/s/ Theodore J. Finn_______________ 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 9, 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:

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Stephen Hopkins, Esq. Torben Welch, Esq. HIGGENS, HOPKINS, McLAIN & ROSWELL, LLC. 300 Union Boulevard, Suite 101 Lakewood, CO 80228 __/s/ Theodore J. Finn_______________

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