DISTRICT COURT, DENVER COUNTY, COLORADO Court Address: 1437 Bannock Street, Rm 256, Denver, CO, 80202 Plaintiff(s) LINDSAY BERRY v. Defendant(s) 1836 BLAKE STREET LLC et al. DATE FILED: July 31, 2015 8:37 AM CASE NUMBER: 2014CV34220 COURT USE ONLY Case Number: 2014CV34220 Division: 209 Courtroom: Order: Stipulated (Between Defendant KONE Inc. and Plaintiff) Motion for a Continuance of Trial (also filed on behalf of Plaintiff) The motion/proposed order attached hereto: DENIED. This case was filed in November 2014. I realize Kone was not part of it until it was served with the amended complaint on March 13, 2015, but that was still more than seven months before trial. Indeed, trial is still more than two-and-a-half months away. Issue Date: 7/31/2015 MORRIS B HOFFMAN District Court Judge Page 1 of 1
DISTRICT COURT, DENVER COUNTY, COLORADO 1437 Bannock Street Denver, CO 80202 Plaintiff: LINDSAY BERRY v. Defendants: 1836 BLAKE STREET, LLC; and KONE INC. f/k/a MONTGOMERY ELEVATOR COMPANY Attorney for Plaintiff: Barry I. Dunn, #30416 Franklin D. Azar & Associates, P.C. 14426 East Evans Avenue Aurora, CO 80014 303.757.3300 dunnb@fdazar.com Attorney for KONE Inc.: Troy R. Olsen, #22287 Lewis Roca Rothgerber LLP 90 S. Cascade Avenue, Suite 1100 Colorado Springs, CO 80903 719.386.3000 tolsen@lrrlaw.com COURT USE ONLY Case Number: 2014CV034220 Division/Ctrm: 209 STIPULATED (BETWEEN DEFENDANT KONE INC. AND PLAINTIFF) MOTION FOR A CONTINUANCE OF TRIAL Defendant KONE Inc. (hereinafter KONE ) by and through its attorney, Troy R. Olsen, and Plaintiff Lindsay Berry (hereinafter Plaintiff ), by and through her attorney, Barry I. Dunn, hereby submit a Stipulated Motion for a Continuance of Trial, and in support state as follows: CERTIFICATION PURSUANT TO C.R.C.P 121 The undersigned counsel for KONE and Plaintiff hereby certify that they have conferred with Andrew Shively, counsel for Defendant 1836 Blake Street, LLC (hereinafter 1836 Blake Street ) who has stated that he opposes the relief sought herein. 1
MOTION Procedural Background 1. This case arises out of an accident that occurred on the premises of 1836 Blake Street, a mixed commercial / residential building in Denver, Colorado 80202, where Plaintiff Berry crushed her fingers during her operation of a freight elevator. 2. Plaintiff originally filed suit on November 5, 2014 against 1836 Blake Street as the owner of the property. 3. On March 5, 2015, 1836 Blake Street filed a Designation of Non-Parties at fault, naming, among other persons and entities, Harris Preble Fire Doors, Inc. and Defendant KONE. 4. On March 11, 2015, Plaintiff filed an Amended Complaint to add KONE, Harris Preble Fire Doors, Inc. and Courion Corporation as defendants. 5. This Court granted Plaintiff s Unopposed Motion to Amend the Complaint on March 12, 2015. 6. On May 4, 2015, 1836 Blake Street filed a Designation of Non-Parties at Fault naming other nonparties. 7. On May 20, 2015, KONE filed a Joinder in 1836 Blake Street s May 4, 2015, Designation of Non-Parties at Fault. 8. On May 22, 2015, Plaintiff filed a Motion to Dismiss Defendant Courion without Prejudice, on the basis that Courion Corporation was not liable in this action. Defendant Courion was the successor in interest to Defendant Harris Preble. Harris Preble was ordered dismissed from this action by this Court on June 1, 2015. 9. 1836 Blake Street opposed Plaintiff s Motion to Dismiss Courion Corporation. 10. On June 23, 2015, this Court granted Plaintiff s Motion to Dismiss Defendant Courion with that Order specifying that it did not affect 1836 Blake Street s Designation of Courion as a Non-Party at Fault. 11. Thus, on June 23, 2015, this case became at issue. 2
I. THERE IS INSUFFICIENT TIME FOR DEFENDANT KONE TO CONDUCT DISCOVERY AND RETAIN EXPERTS PRIOR TO THE CURRENT TRIAL DATE OF OCTOBER 19, 2015 12. Written discovery has been propounded by Plaintiff to 1836 Blake Street and KONE. KONE s responses are pending; they are not due until July 27, 2015, 35 days after the date this case has become at issue. 13. No depositions have been taken to date. Multiple depositions remain pending, including as to the Plaintiff s, Rule 30(b)(6) depositions of persons most knowledgeable as to 1836 Blake Street and KONE, and possibly depositions of treating physicians, experts and certain parties designated as Non-Parties at Fault including but not limited to tenants at 1836 Blake Street. 14. Currently, a five-day jury trial is scheduled to begin on October 19, 2015. 15. There is insufficient time for KONE to conduct written discovery, take depositions, retain experts, obtain expert reports and disclose experts prior to the trial date. Based on the current trial date of October 19, 2015, discovery cutoff is August 31, 2015, and Defendants expert disclosures are due on July 13, 2015. A continuance is requested to allow Defendant KONE to conduct discovery and prepare for trial. II. AFTER SUFFICIENT DISCOVERY OCCURS, MEDIATION WILL LIKELY OCCUR 16. Mediation of this case will likely occur after sufficient discovery takes place. 17. Mediation may result in the settlement of this case, making trial unnecessary. III. IN ADDITION, 1836 BLAKE STREET HAS CONTENDED THAT PLAINTIFF S RETAINED ELEVATOR EXPERT HAS A CONFLICT WITH THAT DEFENDANT 18. While the above discussion in itself provides a strong basis for this Court to grant the requested continuance of trial, an additional issue has arisen with 1836 Blake Street contending that Plaintiff s retained elevator expert, C. Stephen Carr, Ph.D., Technology Litigation Corporation, has a conflict because he was ostensibly contacted by counsel for 1836 Blake Street prior to Plaintiff retaining him. 19. 1836 Blake Street s attorney, Andrew Shively, stated in an email to the undersigned counsel for Plaintiff on June 24, 2015 at 11:06 a.m., in pertinent part,... I see that Plaintiff disclosed Dr. Carr as an expert witness. It appears he has a conflict as my office consulted with him previously concerning this matter. 3
20. Plaintiff believes there is no conflict and can prove this. Plaintiff s counsel has requested by email to Mr. Shively on June 24, 2015 at 12:22 p.m. to provide all information regarding all contacts by Mr. Shively and his office with Dr. Carr and his office, including telephone records. This will take time. 21. Plaintiff must have a validly retained elevator engineer expert in this matter. IV. THERE IS A STRONG LEGAL BASIS FOR CONTINUANCE OF TRIAL 22. Pursuant to C.R.C.P. 121, 1-11, a motion for continuance of trial shall be granted for good cause. The decision to grant or deny a request for a continuance is left to the sound discretion of the trial court. Todd v. Bear Valley Village Apartments, 980 P.2d 973, 976 (Colo. 1999). 23. Good cause is demonstrated in the discussion above, including both the substantive basis for continuance and the timing as to when continuance became necessary. This is a factually complex case and a meaningful trial, if this case is tried, will require an abundance of discovery and expert analysis. 24. No party would be prejudiced by a delay of the trial date. WHEREFORE, for the reasons stated above, Plaintiff and KONE respectfully request this Court to grant this Stipulated Motion for a Continuance of Trial. Respectfully submitted this 30th day of June, 2015. LEWIS ROCA ROTHGERBER, LLP By: s/troy R. Olsen Troy R. Olsen, # Attorney for Defendant KONE Inc. FRANKLIN D. AZAR & ASSOCIATES By: s/barry I. Dunn Barry I. Dunn, #30416 Attorney for Plaintiff 4
CERTIFICATE OF SERVICE I hereby certify that on this the 30th day of June, 2015, a true and correct copy of the foregoing STIPULATED (BETWEEN DEFENDANT KONE INC. AND PLAINTIFF) MOTION FOR A CONTINUANCE OF TRIAL was served on the following via ICCES: Barry I. Dunn Franklin D. Azar & Associates 14426 East Evans Ave Aurora, CO 80014 dunnb@fdazar.com Attorney for Plaintiff Lindsay Berry 789 Clarkson Street Denver, CO 80218 Andrew L. Shively Karen Hannah Wheeler Levy Wheeler Waters, P.C. 6400 South Fiddlers Green Circle, Suite 900 Englewood, CO 80111 ashively@lwwlaw.com kwheeler@lwwlaw.com Attorneys for Defendant 1836 Blake Street, LLC KONE Inc. One KONE Court Moline, IL 61265 s/luanne Sutton Luanne Sutton 5