Free Motion in Limine - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

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Filed 10/14/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. (Senior Judge Merow)

No. 00-697C

PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE CERTAIN DEMONSTRATIVES AND RELATED EXPERT TESTIMONY Wisconsin Electric Power Company ("WE") files this motion in limine to exclude certain demonstratives of Mr. Stephen Kiraly and any related testimony. The demonstratives that WE seeks to exclude are as follows: 1. Defendant's demonstratives DDX 5-55 through 5-57. These demonstratives purport to relate to the time to load a NUHOMS canister compared to a VSC-24 cask; 2. Defendant's demonstrative 5-42. This slide adjusts WE's claim to exclude legal expenses; and 3. Defendant's demonstratives DDX 5-3, 5-15, 5-16 through 5-18, 5-23 and 5-26. WE seeks to exclude the third category of demonstratives as contrary to the parties' Joint Stipulation Regarding Accuracy of Plaintiff's Costs. I. BACKGROUND

The Government served Mr. Kiraly's expert report on WE on June 30, 2006 and served replacement attachments to the report on August 29, 2007 (collectively, the "Kiraly report"). WE deposed Mr. Kiraly regarding the Kiraly report from August 16, 2006 through August 18, 2006 ("Kiraly deposition"). On September 21, 2007, the parties filed a Joint Stipulation Regarding Accuracy of Plaintiff's Costs in this case ("Joint Stipulation").

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On October 10, 2007, the Government produced to WE the demonstratives it intends to use during Mr. Kiraly's trial testimony ("Kiraly demonstratives"). Appendix 1-66 ("Appx."). II. A. ARGUMENT

DDX 5-55 ­ 5-57 (Pursuit of Dual Purpose Casks) Government demonstratives DDX 5-55 through DDX 5-57, the cask loading times

slides, constitute new expert opinions outside the scope of Mr. Kiraly's existing opinions. These new opinions were not previously-disclosed to WE. The Government has known for a long time, and far earlier than trial in this case, the substance of the testimony of Wisconsin Electric's witnesses regarding cask loading times. In January 2006, Mr. Jim Becka testified that it takes less time to place a NUHOMS canister into service compared to a VSC-24. Appx. 67-71 (Becka Dep. Tr. 18:5-13, 169:16-18, and 170:12-24 (January 20, 2006)). In addition, WE produced documents relevant to this issue well prior to trial. On March 30, 2006, WE produced work order packages for the VSC-24 loadings in response to Government Request for Production of Documents 103. Appx. 72-73 (March 30, 2006 WE letter producing WISC 00114818-00116023). On August 20, 2007, WE produced work order packages for recent NUHOMS loadings in response to the Government's August 14, 2007 letter request. Appx. 74 (August 20, 2007 WE letter producing WISC 0013654800137994). In addition, the ISFSI plan views, which are found at PX 796.1 and PX 1029 (bates page KRGWE 003846), were both produced prior to trial. Rule 26(a)(2) of the Rules of the Court of Federal Claims ("RCFC") governs the disclosure of expert opinions and requires that designated expert witnesses provide a written report containing "a complete statement of all opinions to be expressed and the basis and reasons therefor." RCFC(a)(2)(B) (emphasis added). This Court has stricken expert material when the new material constitutes a "new expert report." See Cane Tennessee, Inc. v. United States, 57 Fed.Cl. 115 (2003). See also O2 Micro Int'l Ltd. v. Monolothic Power Systems,

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Inc., 467 F.3d 1355, 168-69 (Fed.Cir. 2006) (affirming exclusion of untimely expert reports according to Fed.R.Civ.P. 37(c)(1) and 26(a)(2)). This new expert material regarding cask loading times materially prejudices WE. All that is available to Wisconsin Electric are the bare slides in Mr. Kiraly's demonstratives. Not only has Mr. Kiraly not issued a supplement to his report, he has provided no underlying documentation in support of his new opinion. By contrast, the Kenrich Group has typically provided a binder with additional background information when it has updated or supplemented its report in this matter. The Government's failure to do likewise has deprived WE of the ability to know what fact and or expert testimony would have been required for a full airing of the issues. This is especially the case considering that the Government has only provided these new expert analyses during the fifth week of an almost six week trial. WE will be materially prejudiced if it is required to probe these new analyses for the very first time during trial. In these circumstances, WE objects to the new cask loading times opinion and the corresponding slides, DDX 5-55 through DDX 5-57, under RCFC 26. WE requests that the Cask loading times slides and any related testimony be excluded. B. DDX 5-42 Comment Regarding Legal Invoices Mr. Kiraly should not be allowed to testify about the materials presented in DDX 542 or to present that demonstrative to the Court. Mr. Kiraly will apparently testify that WE's claimed legal expenses in the amount of $1,222,393 should be excluded.1 Mr. Kiraly's testimony in this regard would be contrary to the parties' Joint Stipulation. WE notes, however, that Mr. Kiraly's purported concerns regarding the legal invoices potentially can be cured through the negotiated production of these documents.

None of the legal fees claimed by WE reflect charges from Perkins Coie related to this litigation that were previously removed from the claim.

1

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The legal costs at issue relate to WE's dry storage application before the PSCW and alternative spent nuclear fuel storage siting projects. Several years ago during discovery, WE declined to produce to the Government unredacted invoices because of a concern that this might be misconstrued as a waiver of the attorney-client privilege with regard to WE's Standard Contract dispute with DOE. If redacted invoices raised a concern on the part of the Government, WE would have expected some follow-up communication from Government counsel. If WE had heard from the Government regarding this issue, WE would have agreed to produce the unredacted legal invoices at issue provided that there was agreement that such production did not constitute a waiver of the attorney-client privilege with regard to WE's Standard Contract dispute with DOE. WE never heard further from the Government and reasonably assumed that there was no remaining Government concern. If Mr. Kiraly had needed unredacted invoices, the Government should have contacted WE regarding this matter far earlier than upon presentation of Mr. Kiraly's demonstratives. From the face of slide DDX 5-42, Mr. Kiraly's only concern is the claimed inability to sort the co-called Newton project from other legal fees. WE of course would have been willing to work with the Government to allow Mr. Kiraly to do such a straightforward analysis of the legal fees had WE known of Mr. Kiraly's concerns. WE timely replied to numerous similar Government audit requests and would have done so here if asked. Moreover, the Government never sought to except the legal invoices from the Joint Stipulation. The Government's failure to raise the legal invoice issue in this process gave WE no indication that the Government would now contest these same costs. WE remains willing to produce unredacted invoices to the Government, provided that there is agreement between the parties or a ruling from the Court that such production does not constitute a waiver of the attorney-client privilege with regard to WE's Standard Contract dispute with DOE.

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C.

Kiraly Demonstratives Contrary to Stipulation Certain of Mr. Kiraly's demonstratives are also contrary to the Joint Stipulation. WE

understood that the parties had agreed, through the September 21, 2007 Joint Stipulation, that, with the exception of two categories, WE's claimed costs were "incurred by WE and [] traceable to and supported by WE's accounting records." Appx. 75-77. Accordingly, WE's damages experts, Messrs. Sieracki and Metcalfe, did not testify to approximately 29 of Plaintiff's exhibits. The demonstratives to which WE objects include the following: Slide DDX 5-3, which relates to A&G Costs Claimed. Slides DDX 5-15 (second bullet), DDX 5-16 through 5-18, DDX 5-23 (top two bullets) and DDX 5-26 (third bullet) generally relate to salaried labor. The Government had stipulated to the accuracy of these costs. WE would be materially prejudiced if the Government is permitted now to present testimony contesting the accuracy of WE's costs in these slides. The Government's apparent prior agreement to the accuracy of the costs at issue affected the proofs that WE presented at trial and deprived WE of the ability to adequately prepare to examine Mr. Kiraly on these costs at trial. Accordingly, WE requests that the Government be precluded from offering the testimony in these slides. Additionally, if Mr. Kiraly's testimony appears to be contrary to the parties' stipulation as to costs, it may be necessary for WE to move for the admission of all of the underlying Kenrich and initial disclosures materials so as to supplement the record. WE had not to this point contemplated the admission of these voluminous additional exhibits based on the parties' Joint Stipulation. In view of Mr. Kiraly's anticipated testimony, WE may not have any alternative but to do so.

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IV.

CONCLUSION

For the foregoing reasons, WE respectfully requests that the Court exclude the new Kiraly opinions not previously disclosed and the demonstratives related to these new expert opinions; and exclude the demonstratives and any related testimony relating to redacted legal invoices and those issues contrary to the parties' Joint Stipulation. In the alternative, WE requests a recess to depose Mr. Kiraly regarding his new opinions and any supporting analyses. Lastly, WE reserves the right to voir dire Mr. Kiraly at trial regarding his qualifications. Dated: October 14, 2007 Respectfully submitted, s/Richard W. Oehler by s/Emily C.C. Poulin Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 (206) 583-8419

Of Counsel: Donald J. Carney Mary Rose Hughes Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005 (202) 434-1675

Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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CERTIFICATE OF SERVICE
I certify under penalty of perjury that, on October 14, 2007, I caused a copy of the foregoing "Plaintiff's Motion In Limine to Exclude Expert Testimony and Related Demonstratives" to be filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ Emily C.C. Poulin Emily C.C. Poulin

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