Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01291-MSK-CBS

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Filed 12/23/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-1291-MSK-CBS FRIEDA E. ENSSLE, BURKE E. ENSSLE, and HEIDI ENSSLE WILSON Plaintiffs, v. ILLINOIS TOOL WORKS INC., SAMES CORPORATION, BINKS RESEARCH & DEVELOPMENT CORPORATION, JOHN DOE/JANE DOE (any person receiving value for transfer of Binks R&D assets) Defendants.

DEFENDANT ILLINOIS TOOL WORKS INC.'S RESPONSE TO PLAINTIFFS' UNOPPOSED MOTION TO ALLOW PETER D. BOWES TO ATTEND THE JANUARY 6, 2006 CONTINUATION RULE 702 HEARING BY TELEPHONE

Defendant Illinois Tool Works Inc. ("ITW"), by its attorneys, submits this Response to Plaintiffs' Unopposed Motion to Allow Peter D. Bowes to Attend the January 6, 2006 Continuation Rule 702 Hearing by Telephone (docket no. 357). In support thereof, ITW states as follows: 1. On December 22, 2005, Plaintiffs filed an "unopposed" motion seeking leave to

allow their expert witness, Peter Bowes ("Bowes"), to attend the continued Rule 702 hearing by telephone, scheduled for 10:00 a.m. on January 6, 2006. 2. Indeed, ITW does not object to allowing Bowes to listen in to the hearing by

telephone, and thus does not ultimately oppose the relief sought in Plaintiffs' motion. However,

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ITW does object to part of Plaintiffs' stated purpose of having Bowes attend the hearing, which objection was not reflected in Plaintiffs' Motion. 3. Plaintiffs indicated that "Mr. Bowes will need to be present to provide rebuttal to

Mr. Clayton's testimony, and to assist counsel in his cross examination of Mr. Clayton." Motion at ¶ 7. But Plaintiffs may not recall Bowes to provide further testimony. 4. The Court's "Procedures for Rule 702 Motions," effective March 1, 2004, govern

the procedure at Rule 702 hearings. The hearing procedures specify that: (iii) the proponent of the expert testimony will then call the expert witness and elicit only that information relevant to the particularlyidentified challenge(s), followed by cross-examination and re-direct examination. The proponent may call additional witnesses, if necessary, or rest; and (iv) the opponent of the expert testimony may then call witnesses to address the challenge(s), followed by cross-examination and re-direct examination. 5. Under section (iii) of the Court's procedures, on October 31, 2005, Plaintiffs

called Bowes in an attempt to lay the foundational requirements under Rule 702 in response to Defendants' challenges. Plaintiffs then rested, indicating that they had no further witnesses. 6. Under section (iv) of the Court's procedures, on January 6, 2006, Defendants

intend to call David Clayton ("Clayton") to address their challenges to Bowes' expert testimony. 7. After Clayton testifies and Defendants rest, the Court's procedures do not allow

Plaintiffs a second opportunity to call Bowes to address Rule 702's foundational requirements or rebut the testimony of Defendants' witnesses. 8. Moreover, no rebuttal is necessary, especially in the limited time the parties have

to complete the Rule 702 hearing. Clayton's testimony will not be a surprise to Plaintiffs or Bowes. Defendants fully disclosed Clayton's opinions and his critique of Bowes on or about

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April 1, 2005 through his expert report. Clayton's testimony on January 6, 2006 will be fully consistent with his report. Plaintiffs therefore already had every opportunity to address these shortcomings in Bowes' original testimony. WHEREFORE, Plaintiffs' Unopposed Motion to Allow Peter D. Bowes to Attend the January 6, 2006 Continuation Rule 702 Hearing by Telephone (docket no. 357) should be denied at least in part. ITW does not object to Bowes' attendance on January 6, 2006 by telephone, but Plaintiffs cannot elicit further testimony from Bowes.

Dated: December 23, 2005

By: s/ Matthew C. Sostrin Robin R. Lunn Susan E. Brice Paul M. Drucker Matthew C. Sostrin MAYER, BROWN, ROWE & MAW LLP 71 South Wacker Drive Chicago, Illinois 60606 Tel: (312) 701-8138 Fax: (312) 706-9119 Attorneys for Illinois Tool Works Inc.

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CERTIFICATE OF SERVICE I hereby certify that on December 23, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to at least the following e-mail addresses: [email protected] Asimakis Iatridis Counsel for Plaintiffs [email protected] Peter Rogers Counsel for Plaintiffs [email protected] Angela DeVine Counsel for Sames Corporation and Binks Research and Development Corporation

s/ Matthew C. Sostrin Robin R. Lunn Susan E. Brice Paul M. Drucker Matthew C. Sostrin MAYER, BROWN, ROWE & MAW LLP 190 South LaSalle Street Chicago, Illinois 60603-3441 Tel: (312) 701-8138 Fax: (312) 706-9119 [email protected] Attorneys for Illinois Tool Works Inc.