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

Case 1:00-cv-00697-JFM

Document 357

Filed 10/08/2007

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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 ANY RELATED TESTIMONY Wisconsin Electric Power Company ("WE") files this motion in limine to exclude Defendant's demonstratives DDX 2-9 through 2-15 relating to a hypothetical spent fuel pool ("Pool Slides") and DDX 2-25 relating to the purported reasonableness of purchasing additional VSC-24 casks for use at the Point Beach Nuclear Plant ("Point Beach") instead of the NUHOMS system ("NUHOMS Slide").1 Both sets of demonstratives contain information, in whole or part, outside the scope of Mr. Brewer's report. Moreover, the Pool Slides are irrelevant to any issues in this case. I. BACKGROUND

The Government served Mr. Brewer's original expert report on WE on June 30, 2006 and served a supplemental report on August 28, 2007 (collectively, the "Brewer Report"). On October 3, 2007, the Government produced to WE the demonstratives at issue.2 All of Mr. Brewer's demonstratives are attached as Exhibit A to this motion.

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Wisconsin Electric reserves the right to conduct voir dire of Mr. Brewer's qualifications at trial.

The Government did not provide a cover letter with the demonstratives at issue. WE presumes that the demonstratives are for use during the testimony of Mr. Brewer. To the extent the Government
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Case 1:00-cv-00697-JFM

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Wisconsin Electric has established at trial that the licensed capacity of the Point Beach spent fuel pool is 1502 spaces. (WE Trial Tr. 137:24-138:15, September 10, 2007). An excerpt of the trial transcript is attached as Exhibit B to this motion. Defendant's Pool Slides, however, apparently depict an analysis of spent fuel in a spent fuel pool having 2343 permanent spaces. Some slides also include a cask pit rack boosting apparent capacity for Mr. Brewer's hypothetical pool to 2464 spaces. The hypothetical pool of over 2,000 spaces is therefore an entirely new creation by Mr. Brewer. With regard to the NUHOMS slide, the Brewer Report does not discuss whether it would have been reasonable to continue purchasing VSC-24 casks for use at Point Beach after the decision was taken to pursue dual-purpose NUHOMS storage systems. Instead, the Brewer Report is limited to discussing whether the VSC-24 was minimally technically sufficient for Point Beach's spent fuel storage needs. See June 30, 2006 Brewer Report at 2528, DX 391. Yet, Defendant's NUHOMS Slide states "continued use of VSC-24 casks reasonable," and then proceeds to list several additional sub-bullets, some of which also are brand new assertions by Mr. Brewer. II. LEGAL STANDARDS

The purpose of demonstrative exhibits is to illustrate or convey the testimony of the witness, and demonstrative exhibits are therefore derivative of witnesses' testimony. Thus, any demonstrative exhibits must be relevant, authentic and based on adequate foundation before they can be considered by the Court. "Evidence which is not relevant is not admissible." Federal Rule of Evidence 402. Even when evidence is relevant, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues." Fed. R. Evid. 403.

seeks to use the slides at issue during any presentation other than Mr. Brewer's, WE similarly seeks exclusion of the demonstratives and related testimony.
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In addition, expert testimony and, correspondingly, demonstratives used during expert testimony, must be limited to the scope of that expert's pre-disclosed opinions. The rules of this Court require disclosure of expert opinions, and WE would be materially prejudiced by any testimony that is outside the scope of the expert opinions the Government has already proffered. 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). Because demonstrative exhibits are derivative of witness testimony, any demonstratives unrelated to pre-disclosed expert opinions are inadmissible at this time. III. ARGUMENT

The Pool Slides are irrelevant and prejudicial. The Pool Slides relate to a spent fuel pool having no apparent relation to Point Beach. The hypothetical pool purportedly holds hundreds more assemblies than Point Beach. Mr. Brewer's related analysis, therefore, can have no relation to Point Beach. Even more importantly, Mr. Brewer's expert report does not even address a spent fuel pool with such a capacity, or attempt to analyze in detail fuel movements at the Point Beach spent fuel pool. Indeed, during his deposition, Mr. Brewer stated that he had "not really analyzed" the extent of additional time and money, if any, relating to spent fuel movements using a Region II temporary rack. (Dep. Tr. of W. Brewer 541:10, August 23, 2006). An excerpt of the deposition transcript is attached as Exhibit C to this motion. If Mr. Brewer is going to now make such analyses in Court, WE is materially prejudiced by not having deposed Mr. Brewer on these issues so as to know what fact and or expert testimony would have been required for a full airing of the issues. Applying the relevance standards of the Federal Rules of Evidence and the expert disclosure rules of this Court, DDX 2-9 through DDX 2-15 and any related testimony should not be considered by this Court.

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The NUHOMS Slide is also inadmissible and Mr. Brewer should not be permitted to use it at trial. The Brewer Report only addresses specific technical issues regarding the VSC24 ­ not the reasonableness of additional purchases of VSC-24s for Point Beach. Again, Mr. Brewer's last minute inclusion of a new opinion has deprived WE of the ability to probe during discovery Mr. Brewer's second-guessing of the seasoned judgment of Point Beach spent fuel professionals regarding the reasonableness of the decision to procure NUHOMS storage systems. Applying the relevance standards of the Federal Rules of Evidence and the expert disclosure rules of this Court, DDX 2-25 and any related testimony should not be considered by this Court. IV. CONCLUSION

For the foregoing reasons, WE respectfully requests that the Court exclude Government demonstratives DDX 2-9 through 2-15 and DDX 2-25 as well as any related testimony (or other Government expert opinions not previously disclosed to WE). In addition, WE reserves the right to voir dire Mr. Brewer at trial regarding his qualifications. Dated: October 8, 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 8, 2007, I caused a copy of the foregoing "Plaintiff's Motion In Limine to Exclude Certain Demonstratives And Any Related Testimony" 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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