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HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 063 - Pl's Reply To Mil Re Dr. ThurstonDISTRICT COURT OF LARIMER COUNTY, STATE OF COLORADO Court address: 201 Laporte Ave. Fort Collins, CO 80621 T: (970) 494-3500 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, STATE OF COLORADO Court Use Only Attorneys for Plaintiffs: Laura Browne, # 46673 Ashley Fridovich, # 47538 WILHITE, ROSE, MCCLURE & SAWAYA, P.C. 1600 Ogden Street Denver, CO 80218 Phone Number: (303) 839-1650 FAX Number: (303) 832-7102 E-mail: lbrowne@sawayalaw.com afridovich@sawayalaw.com Case Number: 2020CV030363 Courtroom: 3C PLAINTIFF STUWARD CROSS’ REPLY IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE TESTIMONY OF LLOYD THURSTON, DO COMES NOW, Plaintiff Stuward Cross, through his counsel Wilhite, Rose, McClure & Sawaya, P.C., and hereby submits the following Reply in Support of Motion in Limine to Exclude Testimony of Lloyd Thurston, DO. Defendant first argues that Plaintiff’s Motion is untimely, in that it addresses issues under C.R.E. 702. Indeed, motions under C.R.E. 702 were due to be filed by September 6, 2021. However, issues under C.R.E. 702 may be raised prior to trial, or even at trial, and are not precluded simply DATE FILED: November 2, 2021 2:12 PM FILING ID: ADADC96DC311D CASE NUMBER: 2020CV30363 because a filing deadline has passed. People v. Rector, 248 P.3d 1196 (Colo. 2011). While 702 issues may be brought up at trial, the trial court should make every effort to resolve issues involving the admissibility of expert testimony before trial. Id. at 1201. Counsel for Plaintiff was brought onto this case after the subject deadline had passed and is bringing these issues to the Court’s attention at the next available time, which is during Pre-Trial Motions. Counsel for Plaintiff is giving the Court the opportunity to address these issues with Dr. Thurston’s anticipated testimony prior to trial, though, if the Court prefers, the issues could alternatively be raised at trial. Despite Defendant’s assertion, the Motion was not filed “on the eve of trial” and was in fact filed more than a month prior to the then- scheduled trial date. It is unclear why Defendant thought it only had 7 days to respond to the Motion, as Plaintiff believes it had 14 days for a response. Regardless, any alleged “untimeliness” of the Motion was not overly prejudicial to Defendant, as it had ample time to respond to the Motion and prepare its defense prior to trial. Furthermore, the trial has now been continued to February 28, 2022, and there can be no actual prejudice to Defendant at trial due to the additional time Defendant now has to prepare its witness for cross-examination. Defendant cites no actual support, other than conclusory statements, for its threadbare assertion in its Response that “Dr. Thurston’s Testimony is Well-Supported.” Defendant next relies on another conclusory statement, that the subject collision was “low energy,” to support its assertion that Dr. Thurston’s testimony is admissible under C.R.E. 702. Defendant is missing the point. As a doctor of osteopathy, Dr. Thurston is simply not qualified to opine on the forces at play in the collision. Nor is counsel for Defendant for that matter. There are experts who are qualified to do so, including engineers and accident reconstructionists, but Defendant chose not to hire those experts and is instead attempting to have their doctor stretch wildly into areas beyond his expertise. Defendant makes statements in its response to support Dr. Thurston’s opinions, such as the idea that there was “no structural damage” (a lay witness opinion by Plaintiff Cross not supported by any expert testimony) and that it was a “low energy event” and even included one photograph of the back of Plaintiff Cross’s vehicle to the Court, in an effort to get the Court to believe these assertions. The photograph is irrelevant and an attempt to distract the Court from the issue. Defendant can put that photograph in front of the jury and ask them to make their own deductions about whether Plaintiff Cross could have been injured in this collision, but the law does not support Dr. Thurston telling the jury that Plaintiff could not have been hurt on this basis. Defendant attempts to denigrate the standing case law on this subject, Schultz v. Wells, by stating the case is twenty-one years old. It is, and it has not been overturned or limited since its holding, despite any new literature that has come out since its holding. The case is still good law, and is the law by which Courts have indeed issued “bright-line” rules regarding threshold of injury opinions ever since. Defendant argues that the literature Dr. Thurston references is somehow different than other literature and allows him to offer a threshold of injury opinion. Regardless of the articles Dr. Thurston cites, he is not an expert in this field. He is not qualified to opine on it. Due to his lack of qualification, his opinions are unreliable and not helpful to the jury. He is not allowed to sit on the stand at trial and read other experts’ reports as his own opinion without any basis of his own for coming to those opinions. Defendant is hoping the Court will allow a doctor of osteopathy to do a records review, look at some photographs, read from other experts’ reports, and tell the jury that there is no way Plaintiff Cross could have been injured in this collision on that basis. The law does not allow him to do so, and allowing it in this case would be unduly prejudicial to Plaintiff Cross. WHEREFORE, Plaintiff Cross respectfully moves this Court to grant Plaintiff Cross’ Motion in Limine to Exclude Testimony of Lloyd Thurston, DO. DATED: November 2, 2021. Respectfully submitted, WILHITE, ROSE, MCCLURE, SAWAYA & P.C. /s /Laura Browne Laura Browne, Esq. CERTIFICATE OF SERVICE I certify that on November 2, 2021 this PLAINTIFF STUWARD CROSS’ REPLY IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE TESTIMONY OF LLOYD THURSTON, DO was served on all parties via CCEF electronic filing or mail to the following: Andrew W. Callahan, Esq. Wick & Trautwein, LLC PO Box 2166 Fort Collins, CO 80522 Attorneys for all Defendant Andrew Stephens, Esq. Fort Collins City Attorney’s Office PO Box 580 Fort Collins, CO 80522 Katrina Richman 2027 Shorebird Drive, Apt 202 Fort Collins, CO 80525 Plaintiff /s/ Kassandra Burival Original Signature on File in Attorney’s Office Kassandra Burival, Litigation Paralegal