Hertz v. Luzenac America Inc

Filing 497

ORDER denying 465 467 Luzenac's Motion to Strike Plaintiff's Expert Bruce Berglund, by Judge Lewis T. Babcock on 4/19/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 04-cv-01961-LTB-CBS

SANFORD LEE HERTZ,
Plaintiff and Counterclaim Defendant,
v.
LUZENAC AMERICA, INC., a Delaware Corporation,
Defendant and Counterclaim Plaintiff.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on a Motion to Strike filed by Defendant and Counterclaim
Plaintiff, Luzenac America, Inc. (“Luzenac”), seeking to strike the testimony of Bruce Berglund,
as an expert and fact witness designated by Plaintiff and Counterclaim Defendant, Sanford Lee
Hertz (“Hertz”). [Doc # 465] After consideration of the parties’ briefs and exhibits, as well as
the argument, evidence and testimony presented to me on April 12, 2011, I DENY the motion for
the following reasons.
I. Background
Hertz was employed by Luzenac from August 1994 until his termination in January 1998.
Luzenac mines, processes and sells industrial talc products, and Hertz was the Technical
Manager in Luzenac’s paint group. Following his termination with Luzenac, Hertz entered into
a consulting agreement with IMI Fabi, LLC (“IMI Fabi”), to help it develop, manufacture and
market a vinyl silane-coated talc product to compete with Luzenac’s product. The Luzenac
product is known as “Mistron 604AV,” and IMI Fabi’s competing product is called “Genera.”

After becoming aware of the agreement, Luzenac sent Hertz a cease-and-desist letter,
through counsel, demanding that Hertz stop misappropriating Luzenac’s trade secrets in August
of 2003. In response to the letter, Hertz filed this lawsuit against Luzenac seeking declaratory
relief that he had not misappropriated trade secrets. In addition, Hertz has asserted claims
against Luzenac for Title VII retaliation and for defamation. Luzenac’s counterclaims against
Hertz are for intentional interference with prospective business advantage, misappropriation of
trade secrets, conversion, civil theft, conspiracy, and breach of contract.
II. Mr. Berglund’s ProfferedTestimony
In the Second Amended Pretrial Order, Hertz indicates that Bruce Berglund will be
called to offer “opinion testimony regarding Luzenac’s asserted trade secrets and industry related
knowledge regarding related products” consistent with his reports and deposition testimony. In
addition, Hertz proffers that Dr. Berglund “may testify about the public availability of the
information Luzenac accused Hertz of stealing, including techniques and processes that are
typically used in the industry to apply chemicals to minerals, and Hertz’s knowledge of such
techniques and processes prior to his employment at Luzenac.” [Doc # 460]
In his expert report, dated October 2, 2005, Berglund makes the following conclusions:
1)

There is a wealth of knowledge, published and unpublished, regarding silicone and silane
mineral treatments going back for decades. The use of vinyl triethoxysilane (VTEO) to
treat talc was known in the 1970’s. Treating talc with 0.5-1.0% silane including VTEO
has been common industry knowledge. The chemistry of vinyl silane treated talc
described in Luzenac documents is common industry knowledge and not proprietary.

2)

Lee Hertz was familiar with silicone (and silane) chemistry when he worked at Wacker
as a silicone chemist for the coatings industry in the early 1990's. Lee Hertz knew about
treating silicates, clay and talc with silicones (including silane) when he worked at
Wacker in the early 1990's and prior to his employment at Luzenac.

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3)

The Alpine process as described in the November 11, 2002 document by Ed McCarthy is
not unique and, in fact, has some likely issues that would be expected to lead to nonuniform talc treatment with agglomerates, incomplete reaction and lower treatment levels
than expected depending on the temperature and humidity in the manufacturing site (due
to VTEO vaporizing instead of reacting with the talc). As such, Luzenac’s purported
trade secret process is well known in the industry. Each of the individual characteristics
and components of the Luzenac process as well as the process as a whole is in the public
domain. To the extent Luzenac witnesses testified that it was developed over years of
experimentation this effort was due to inadequate research and was not reasonable or
necessary. Given the amount of available information it would take minimal time or
expense for someone experienced in the industry to duplicate and even improve on
Luzenac’s process.

4)

The IMI Fabi process used to make Genera products is distinctly and substantially
different from the Luzenac Alpine process. The talc is different. The silane is introduced
to the process differently. The mixer used is different. The residence or reaction time is
different. The products are different. It is apparent that Lee Hertz used his prior
knowledge about silicone treatments from Wacker to design process changes that
produced a more uniform, consistent product. It is clear to me that Lee Hertz developed
the IMI Fabi process based on his skill, knowledge and experience from Wacker and
reading readily available, standard industry information on silicone (silane) filler
treatment.

5)

The differences between the Alpine and IMI Fabi processes are significant leading to
differing qualities of VTEO treated talc as was observed in customer performance
evaluations. The IMI Fabi process was derived from Hertz’ general knowledge,
expertise, and experience in the industry and that he did not rely on any specific process
used by Luzenac.

6)

It is easy for coatings industry suppliers to identify coatings companies to approach and
target with products. Lee Hertz, who was knowledgeable about these sources of
information, knew coatings manufacturers, what kinds of coatings they make, and what
kinds of raw materials they use at the time he worked for Wacker. Lee Hertz had the
general knowledge, expertise and experience in the industry to know where to sell silane
treated talc before joining Luzenac.

7)

Customer information and contacts go with the person – Coating customers have
commonly stated that “people buy from people.” Lee Hertz had well established coatings
industry relationships prior to joining Luzenac when he worked at Wacker.

8)

It is common for competitors to try to duplicate products made by other companies –
Customers often ask for other suppliers to make something similar to competitive
offerings (an offset). In this case the Genera product is a functional offset to the Luzenac
product, differing in composition and performance.
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9)

Existing suppliers of a product run the risk of losing their business whenever they
change, discontinue, or try to replace products at an account. When a manufacturer needs
to begin technical work to evaluate and qualify a new product they generally open the
door to competitive offerings as well when they perform their evaluations. When
Luzenac decided to change Mistron 604AV manufacturing sites or discontinue Mistron
604AV and have VHM 604AV replace it Luzenac ran the common risk of losing the
business to competitive technologies and products.

10)

Based on my knowledge and experience in the industry, of Lee Hertz’s expertise prior to
joining Luzenac, and the significant differences between the two manufacturing
processes it is my opinion that the IMI Fabi process was derived from Hertz’s general
knowledge, expertise, and experience in the industry and that he did not rely on any
specific process used by Luzenac.
In this motion, Luzenac asks that I strike Bruce Berglund as both an expert and a fact

witness. Hertz opposes this request. On April 12, 2011, the parties argued the motion and
Luzenac presented evidence in the form of testimony by its expert, Dr. Ray Hauser.
III. Fact Testimony
As an initial matter, I first address Luzenac’s argument that I should strike Mr. Berglund
as a fact witness for lack of foundation. Mr. Berglund’s fact-based testimony, as proffered,
relates to Hertz’s knowledge and expertise gained prior to his employment at Luzenac;
specifically, the extent of Hertz’s pre-Luzenac knowledge of industry techniques and/or
processes; his general knowledge of the industry; and his “well established coatings industry
relationships” in order for him to know where to sell silane treated talc. Dr. Berglund’s
proffered testimony is based on their past relationship as co-workers with another company
(“Wacker”) from 1993 to 1994. Luzenac maintains that Dr. Berglund only worked with Hertz
for one year, from 1993 to 1994, as technicians or chemists who worked in the same laboratory,
but on different projects. Mr. Berglund testified in his deposition that they were “good work
colleagues” and that he would give advice to Hertz regarding his projects. However, he did not

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supervise Hertz or work jointly with him. Luzenac asserts that this relationship is insufficient to
establish personal knowledge of the matter under Fed. R. Evid. 602.
Rule 602 provides that “[a] witness may not testify as to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge of the matter.”
Rule 602 “does not require that the witness’ knowledge be positive or rise to the level of
absolute certainty . . . [e]vidence is inadmissible only if in the proper exercise of the trial court’s
discretion it finds that the witness could not have actually perceived or observed that which he
testifies to.” U.S. v. Sinclair, 109 F.3d 1527, 1536 (10th Cir. 1997)(quoting M.B.A.F.B. Fed.
Credit Union v. Cumis Ins. Soc’y, Inc., 681 F.2d 930, 932 (4th Cir. 1982)). It is permissible for
a witness to provide both lay and expert testimony in a single case. See U.S. v. Caballero, 277
F.3d 1235, 1247 (10th Cir. 2002)(“[w]itnesses need not testify as experts simply because they
are experts”); see also Fed.R.Evid.701, 2000 Advisory Committee’s Note (Rule 701 “does not
distinguish between expert and lay witnesses, but rather between expert and lay
testimony”)(emphasis in original).
To the extent that Mr. Berglund has sufficient personal knowledge to render factual
testimony about what he was aware that Hertz knew prior to his employment with Luzenac, the
parties agreed at the hearing on this motion that this determination is not subject to a pre-trial
ruling. As such, I will deny Luzenac’s pre-trial request that such testimony is inadmissible as
without foundation under Rule 602. To the extent that Luzenac wishes to challenge Berglund’s
personal knowledge of his proffered factual testimony, such challenge is for determination at
trial. See generally Koch v. Koch Industries, Inc., 2 F.Supp.2d 1385, 1388 (D.Kan. 1998)(“a
court is almost always better situated during the actual trial to assess the value and utility of

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evidence”).
IV. Expert Testimony
I next address Luzenac’s argument that Dr. Berglund should not be allowed to offer his
opinions as an expert witness in this matter. Berglund’s expert testimony relates to his general
knowledge and opinions about the silicone chemical industry, and his opinion about what
constitutes common industry knowledge in this case. Berglund also opines as to specific issues
in this case, such as that the process used by IMI Fabi to manufacture Genera is “distinctly and
substantially different” than the Luzenac process for making Mistron 604AV.
The admission of expert testimony is governed by Fed. R. Evid. 702, 703, 401 and 403.
Rule 702 sets forth the standard for admission of expert testimony, and assigns “to the trial judge
the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant
to the task at hand.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993). Specifically, Rule 702 provides that:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
The proponent of the expert testimony bears the burden of proving the foundational requirements
of Fed. R. Evid. 702 by a preponderance of the evidence. Daubert v. Merrell Dow, supra, 509
U.S. 579 at 592 n. 10; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,
143 L.Ed.2d 238 (1999). The court’s “gatekeeping” role favors admissibility of expert testimony
when it is reliable and relevant, but any issue of credibility or weight of the expert’s testimony

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belongs to the trier of fact. Frederick v. Swift Transp. Co., Inc., 591 F.Supp.2d 1156, 1158 -1159
(D. Kan. 2008).
In assessing a Rule 702 challenge, I must first determine whether the expert is qualified
to render the proffered opinion. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th
Cir. 2006). If I determine that the expert is sufficiently qualified, I next assess whether the
opinion itself is reliable. Id.; U.S. v. Crabbe, 556 F.Supp.2d 1217, 1220 (D .Colo. 2008)(“in
addition to the witness having appropriate qualifications, the proponent of the witness’ opinions
must demonstrate that the process by which the witness derived his or her opinions is reliable”).
Whether an expert’s testimony is reliable requires an assessment of “the reasoning and
methodology underlying the expert’s opinion.” Daubert v. Merrell Dow, supra, 509 U.S. at
592-93. The reliability factors, as first set forth in Daubert v. Merrell Dow, include the
following: (1) whether the theory or technique at issue has been subjected to testing, (2) whether
the theory or technique has been subjected to publication and peer review, (3) whether the theory
or technique has a known or potential rate of error, and (4) whether the theory or technique has
achieved general acceptance in the particular technical or scientific community. Id. at 593-94.
The test of reliability is “flexible” and the Daubert factors “neither necessarily nor exclusively
applies to all experts or in every case.” Kumho Tire v. Carmichael, supra, 526 U.S. at 152 (“the
trial judge must have considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable”).
The reliability determination focuses on the process or means by which the witness
derived the opinion – this is referred to as an assessment of the methodology or application of
principles. Fed. R. Evid. 702 sets out three specific requirements: 1) a showing that the method

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or principle used by the witness is reliable; 2) a showing that the witness used sufficient facts
and data as required by the method or principle; and 3) a showing that the witness properly
applied the method or principle to the collected facts and data. See U.S. v. Crabbe, supra, 556
F.Supp.2d at 1221-22; see also Fed. R. Evid. 703 (providing that “in order for the opinion or
inference to be admitted,” the underlying facts or data relied upon must be “of a type reasonably
relied upon by experts in the particular field in forming opinions or inferences upon the
subject”).
Finally, I must determine whether the proffered expert testimony is relevant in that it will
assist the trier of fact. In so doing, I consider non-exclusive factors such as: (1) whether the
testimony is relevant; (2) whether it is within the juror’s common knowledge and experience;
and (3) whether it will usurp the juror’s role of evaluating a witness’s credibility. U.S. v.
Rodriguez- Felix, 450 F.3d 1117, 1123 (10th Cir. 2006)(citations omitted); see also Fed. R. Evid.
401 (relevant evidence “means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence”). The question of relevance is essentially “whether [the]
reasoning or methodology properly can be applied to the facts in issue.” Daubert v. Merrell
Dow, supra, 509 U.S. at 593; see also General Elec. Co. v. Joiner, 522 U.S. 136, 151-52, 118
S.Ct. 512, 139 L.Ed.2d 508 (1997). The consideration of relevant evidence is one of “fit”or “the
logical relationship between the evidence proffered and the material issue that evidence is
supposed to support to determine if it advances the purpose of aiding the trier of fact.” Bitler v.
A.O. Smith Corp. 391 F.3d 1114, 1121 (10th Cir. 2004). Even if deemed relevant, however,
expert evidence “may be excluded if its probative value is substantially outweighed by the

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danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence” under Fed. R.
Evid. 403. See e.g. C.A. Associates v. Dow Chemical Co., 918 F.2d 1485, 1489 (10th Cir. 1990).
A. Process is Different
Luzenac’s primary argument is that Dr. Berglund should not be able to opine that the
process used by IMI Fabi to manufacture Genera is “distinctly and substantially different” than
the Luzenac process for making Mistron 604AV. Luzenac does not challenge Dr. Berglund’s
credentials or qualifications related to this opinion. Nor does it contend that the testimony
should be excluded for any reason under Fed. R. Evid. 403. Rather, Luzenac asserts that he
should not be allowed to provide expert testimony because his opinions are unreliable and/or are
irrelevant.
Luzenac first maintains that Berglund’s opinion that the manufacturing processes are
different should be stricken as unreliable. Luzenac argues that Berglund’s methodology
regarding the differences in the process is unreliable because it is supported only by inaccurate
factual assumptions and/or unsupported speculation. In so doing, Luzenac notes that Berglund
lacks personal knowledge of the primary difference in the process. Specifically, Berglund has
never witnessed the equipment or method by which silane is introduced to the talc in IMI Fabi’s
process. In addition, it argues that the other differences relied upon by Berglund are not material
or undermined by his own testimony. As such, his conclusions regarding the differences are not
supported by sufficient facts to meet the minimal test of reliability under Rule 702. Luzenac also
asserts that Berglund’s opinion is not relevant – in that his testimony is not sufficiently tied to
the facts of the case and would be of no assistance to the jury – because the five differences
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relied upon do not pertain to or are not part of the alleged misappropriated trade secret.
In response, Hertz argues that Luzenac’s only argument is that Berglund’s opinion about
the differences in the manufacturing processes is that he has not personally observed the IMI
Fabi process. Hertz asserts that first-hand observations are not required to form an expert
opinion. Moreover, Hertz maintains that the application of the silane to the talc is “but one small
aspect of a broader analysis” underlying his opinion of the substantial differences between the
processes, and even if Berglund is wrong about that process, such error goes to credibility.
Finally, Hertz argues that it will produce evidence that the differences relied upon by Berglund
are important aspects of IMI Fabi’s trade secret in its entire manufacturing process.
It is well established that Hertz bears the burden of establishing the admissibility of Dr.
Berglund’s expert testimony pursuant to Fed. R. Evid. 702. U.S. v. Nacchio, 555 F.3d 1234,
1237 (10th Cir. 2009). As such, it would have benefitted Hertz to have Dr. Berglund testify at
the hearing on this motion. However, in exercising my function as a gatekeeper of expert
testimony, I conclude that Dr. Berglund’s proffered opinion testimony related to the alleged
differences in the Luzenac and IMI Fabi process is not excluded by Fed. R. Evid. 702.
First, as noted, Luzenac does not challenge Dr. Berglund’s qualifications to render his
opinion on this issue. Rather, Luzenac argues that the testimony is unreliable by challenging its
methodology on the basis that Berglund’s factual assumptions are not based on personal
knowledge and are patently erroneous. However, Berglund is not required to have first-hand
knowledge of the process in order to render an opinion and, in addition, to the extent he relies
upon inaccurate facts related to the process, such reliance is a matter of credibility susceptible to
cross-examination at trial. I disagree that these alleged errors rise to the level of rendering the
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methodology so speculative as failing to meet the minimal test of admissibility, or negated the
showing that Berglund utilized sufficient facts and data under Rule 702 and Daubert v. Merrell
Dow, supra. Finally, I find that the proffered testimony is relevant in that there is clearly a
logical relationship between it and the material issue in question here – specifically, whether
Hertz misappropriated Luzenac’s trade secrets in creating the IMI Fabi process – in order to aide
the jury. The issue of the differences and similarities of the IMI Fabi and Luzenac processes is a
quintessential “battle of the experts” in which cross-examination will be the testing ground for
the jury. “Vigorous cross-examination, presentation of contrary evidence and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert v. Merrell Dow, supra, 509 U.S. at 595.
B. IMI Fabi Process is a Trade Secret
Luzenac next argues that Berglund should not be able to testify at trial that it is his
opinion that the manufacturing process used by IMI Fabi is a protected trade secret. Luzenac
again argues that Berglund’s opinion is based on inaccurate knowledge of that process. As such,
Luzenac maintains that such opinion is unreliable. In its briefing, Luzenac refers to the fact that
Berglund admits that he has no personal knowledge of IMI Fabi’s critical process – the
application of a extremely fine droplet size of silane. Luzenac also asserts that Berglund has no
knowledge about IMI Fabi’s actions or inactions in keeping its process secret. As such,
Luzenac argues that Berglund’s opinion that IMI Fabi’s process is a trade secret is not reliable.
Hertz acknowledges in its briefing that Berglund “mentioned in passing” that the IMI
Fabi process is a trade secret, but concedes that whether IMI Fabi’s process is or is not a trade
secret is not at issue in this case. However, Hertz argues that the fact that the IMI Fabi process is
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unique or not “known in the industry” is relevant because it tends to show that Hertz did not rely
on information from Luzenac when developing the IMI Fabi process.
Whether IMI Fabi’s manufacturing process, or parts thereof, is unique or not publicly
known in the industry constitutes expert testimony subject to Fed. R. Evid. 702 analysis.
Luzenac does not challenge Dr. Berglund’s qualifications to testify as to this issue. To the extent
that Luzenac contests reliability, I find that Dr. Berglund’s opinions on what information and
processes are known in the industry – as applied to this case – is a reliable methodology. And,
like his opinion how the manufacturing processes are different, Luzenac may discredit his
opinion by cross-examination related to its position that his factual assumptions related to the
IMI Fabi are erroneous. Again, I disagree with Luzenac to the extent it is arguing the Berglund’s
reliance on alleged incorrect facts renders his methodology to be so speculative that his opinions
are unreliable. Finally, I conclude that the opinion testimony at issue is clearly relevant, in that it
would assist the jury to determine the issue of whether Hertz misappropriated Luzenac’s trade
secrets related to the manufacture of Mistron 604AV when he set up the process to manufacture
Genera at IMI Fabi.
C. Misappropriated Customer Information
Luzenac also asserts that Dr. Berglund should not be able to testify that Hertz did not
misappropriate customer information because Hertz knew who to contact based on his
knowledge of the industry before being hired by Luzenac. At the hearing, Luzenac argues that
Berglund is not qualified to testify to this issue because he has no expertise in the area of
customer list. Luzenac also argued that his opinion is not reliable because it is based on
incorrect factual assumptions.
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In its response and at the hearing, Hertz agreed that Berglund may not testify as to
whether or not Hertz misappropriated customer lists from Luzenac. Rather, Hertz contends that
Berglund’s proffered testimony relates to what customer information – such as purchasing
volumes, price, etc. – constitutes general industry knowledge, and that Hertz had relationships
with these customers prior to joining Luzenac.
I have determined, as discussed above, that whether Berglund may testify as a fact
witness regarding his awareness of Hertz’s knowledge of the industry prior to his employment
with Luzenac is an issue of foundation for trial. I further conclude that Berglund’s general
knowledge of the availability of customer information in the industry is admissible as
generalized expert testimony. See 2000 Advisory Committee Notes to Fed. R. Evid. 702
(recognizing that it is “important in some cases for an expert to educate the fact finder about
general principles, without ever attempting to apply these principles to the specific facts of the
case”). Generalized expert testimony requires that: (1) the expert be qualified; (2) the testimony
address a subject matter on which the fact finder can be assisted by an expert; (3) the testimony
be reliable; and (4) the testimony “fit” the facts of the case. Id. at ¶ 9.
I conclude that Berglund’s testimony related to general knowledge regarding the
customer base in the industry is admissible under this standard. However, as agreed to by the
parties, Mr. Berglund will not be allowed to testify as to his opinion on whether Hertz did or did
not misappropriate customer information from Luzenac.
D. Public Availability
Finally, Luzenac asserts that Berglund should not be permitted to opine that portions of
the process Hertz is accused of misappropriating from Luzenac is publically available
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information or to testify as to Hertz’s general knowledge of that publically available industry
knowledge.
In its briefing, Luzenac’s sole challenge to this testimony is that it is not “fact” testimony
– as designated or described as in the Second Amended Pretrial order – but rather constitutes
expert testimony. At the hearing, Luzenac argues that Berglund is not qualified to testify as to
Hertz’s general knowledge of the industry because he is not qualified to testify as to what Hertz
knows, and any such testimony would not be reliable because Berglund’s knowledge of the
industry is again based on inaccurate factual information – specifically, the “primary issue” of
how saline is applied to talc in the manufacturing process. Thus, Luzenac argues that Berglund
should not be allowed to testify as to Hertz’s industry knowledge.
To the extent that Luzenac is challenging Dr. Berglund’s testimony related to his
knowledge of the depth of Hertz’s industry knowledge prior to his employment at Luzenac, such
testimony is factual in nature and, as I have ruled, is subject to any foundational challenge under
Fed. R. Evid. 602 at trial.
In contrast, whether the processes at issue are or are not publically available constitutes
expert testimony in the form of specialized knowledge as set forth in Fed. R. Evid. 702. And, as
such, it is subject to the rigors of admissibility for expert opinion. Luzenac argument that
Berglund is not qualified to testify as an expert as to the public availability of such information,
and that his testimony is again not reliable. However, as discussed above, I have determined that
Berglund’s opinion regarding whether IMI Fabi’s manufacturing process, or parts thereof, is
publicly known in the industry is admissible opinion evidence under Fed. R. Evid. 702.

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ACCORDINGLY, for the reasons stated, I DENY Luzenac’s Motion to Strike Plaintiff’s
Expert Bruce Berglund. [Doc # 465]

Dated: April

19 , 2011 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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