Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00776-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) ) )

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs,

No. 05-776C Judge Margaret M. Sweeney

v. THE UNITED STATES OF AMERICA, Defendant.

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER AND MOTION TO STRIKE PLAINTIFFS' PROPOSED EXPERT The Government, in conjunction with its Opposition to Plaintiffs' Motion for Leave to Conduct More Than Ten Depositions, has moved for a protective order and to strike Plaintiffs' expert witness Glenn C. Telling, Ph.D. 1/ In support of these motions, the Government advances the exact same arguments offered in its opposition to Plaintiffs' motion for leave, namely that evidence of testing-related witnesses is irrelevant and outside of this Court's jurisdiction and that the depositions of certain other witnesses is cumulative and unduly burdensome. 2/

1/ Dr. Telling is an Associate Professor of Immunology and Molecular Genetics for the Department of Microbiology and Immunology at the University of Kentucky College of Medicine. Dr. Telling will provide expert testimony in support of Plaintiffs' claim that their sheep not afflicted with or exposed to scrapie, bovine spongiform encephalopathy, or any other type of transmissible spongiform encephalopathy ("TSE"), as well as expert testimony in rebuttal to any contention that Plaintiffs' sheep had been affected or exposed to "an atypical TSE of foreign origin." Dr. Telling will also provide expert testimony on the improper testing performed and unreliable procedures followed by the USDA in evaluating the health and condition of Plaintiffs' sheep. 2/ The Government initially filed its opposition to Plaintiffs' motion together with its own motions in one document on December 12, 2006. (Docket entry #27.) That same day, the Court struck the Government's filing on the grounds that the Government should have made these filings as separate documents. (Order dated Dec. 12, 2006; docket entry #28.) On December 14, 2006, the Government separately filed its Opposition to Plaintiffs' motion (docket entry #29) and its motions for a protective order and to strike (docket entry #30). Although separately filed, the substance and arguments contained in each are identical.

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Plaintiffs oppose both of the Government's motions for the same reasons set forth in their Reply in Support of Their Motion For Leave to Conduct More Than Ten Depositions 3/ and specifically incorporate those arguments herein. 4/ In summary: · The Government has made it abundantly clear that it will rely on its claim that a few of the sheep were infected with TSE. As explained in Plaintiffs' Reply, Plaintiffs disagree that this issue is material to the physical and categorical takings that occurred here. But the Government's defenses rely squarely on its TSE claim, and so the flaws in the Government's TSE testing procedures are therefore relevant. (See Pls.' Reply at 5-8.) · The Government claims this Court lacks jurisdiction to decide the TSE issue, but it is the Government that has presented that issue as a defense. And, in any event, the law is clear: If the seizures and quarantines are to be analyzed not as physical or per se takings, but as if they were temporary regulatory takings under Penn Central, as the Government contends, this Court unquestionably has jurisdiction to pass on the Government's (unsupportable) claim that the sheep were in fact infected with TSE and for that reason presented a grave threat that could be eliminated free of any compensation obligation. (See Pls.' Reply at 8-9.)

3/ Plaintiffs will refer to their Reply in Support of Their Motion for Leave to Conduct More Than Ten Depositions as "Plaintiffs' Reply" and will cite it as "Pls.' Reply at ___." 4/ Pursuant to the United States Court of Federal Claims Rules 7(b)(2) and 5.2(b)(3), Plaintiffs reproduce their Reply In Support of Their Motion For Leave To Conduct More Than Ten Depositions and its internal appendix as Appendix A to this Opposition.

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·

Nothing in the Vermont litigation, which Plaintiffs brought to try to stop the slaughter of their flocks, has any collateral estoppel effect that would preclude this Court's inquiry into the flaws in the Government's TSEtesting or into the question whether these sheep were or were not actually infected. (See Pls.' Reply at 9-13.)

·

Finally, as to the Government's contention that the intended depositions of certain witnesses are cumulative and unduly burdensome, the Government offers no specific information in support of its argument that outweighs Plaintiffs' need (and right) to depose witnesses who have knowledge on key issues related to this case. (See Pls.' Reply at 13-14.) On this last point, even if the Government had offered such information, a protective order precluding the deposition of every witness challenged by the Government would go too far. The Government has not met its burden of demonstrating exactly which witness or witnesses would be sufficient to provide the relevant information, and even if it had, Plaintiffs still would maintain the right to choose which witness or witnesses among alternatives it would depose. In the simplest instance, between two witnesses deemed to be cumulative of one another, Plaintiffs still would have the freedom to choose one of the two witnesses to depose. For these reasons, Plaintiffs respectfully request that the Court deny the

Government's Motion for Protective Order and its Motion To Strike Plaintiffs' Proposed Expert, Dr. Telling.

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Respectfully submitted,

By:

/s Jonathan L. Abram Jonathan L. Abram

HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5681 (direct) (202) 637-5910 (facsimile) Attorney of Record for Plaintiffs Ag-Innovations, Inc., Larry Faillace, Linda Faillace and Houghton Freeman OF COUNSEL: Raymond S. Calamaro Kevin S. Willen HOGAN & HARTSON, L.L.P. 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 (202) 637-5910 (facsimile) Dated: December 28, 2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) )

AG-INNOVATIONS, INC., LARRY FAILLACE, LINDA FAILLACE, and HOUGHTON FREEMAN, Plaintiffs,

No. 05-776C

v. THE UNITED STATES OF AMERICA, Defendant.

ORDER The Court having considered Defendant's Motion for Protective Order and Motion to Strike Plaintiffs' Proposed Expert, the Plaintiffs' Response in Opposition thereto, and any reply, the Court rules as follows: (1) (2) Defendant's Motion for Protective Order is DENIED; Defendant's Motion to Strike Plaintiffs' Expert Witness is DENIED.

IT IS SO ORDERED.

Margaret M. Sweeney JUDGE

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CERTIFICATE OF FILING The undersigned certifies under penalty of perjury that on this 28th day of December, 2006, I caused a true and correct copy of the foregoing Plaintiffs' Opposition to Defendant's Motion for Protective Order and Motion to Strike Plaintiffs' Proposed Expert, with its Appendix, to be filed with the Court and to be served via the Court's electronic filing system on the following: Sheryl L. Floyd, Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, DC 20530

By:

/s Kevin S. Willen Kevin S. Willen

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