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Case 1:99-cv-04451-ECH

Document 223

Filed 05/23/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) ) STONE, ERROL L. & SUSAN H., ) In their own right and as Trustees of the ) Susan H. Stone Trust and the Errol L. Stone ) Trust ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) ) ) EUGENE J. FRETT, Individually and ) as trustee of the Victor J. Horvath and Frances ) B. Horvath Trust, and ) ) DONNA P. FRETT, ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) JOHN H. and MARY E. BANKS, et al.,

No. 99-4451 L Judge Emily C. Hewitt

No. 04-277 L Judge Emily C. Hewitt

No. 05-1353 L Judge Emily C. Hewitt

JOINT PRELIMINARY TRIAL SCHEDULE

Case 1:99-cv-04451-ECH

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Filed 05/23/2007

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The parties respectfully submit the attached "Joint Preliminary Trial Schedule." We also ask the Court's assistance on one matter. Specifically, the schedule reflects Dr. Larson testifying on Friday, June 8. Dr. Larson is one of defendant's experts. Under this schedule, plaintiffs anticipate calling Dr. Larson as their witness and conducting examination first. Defendant respectfully suggests that the Court, pursuant to Fed.R.Evid.611(a), should allow defendant to present initially the testimony of Dr. Larson, who is testifying as an expert. It would lend itself to a more orderly sequence of testimony, e.g., qualifying the witness as an expert and presentation of his expert opinions. Plaintiffs assert that they intend to call Dr. Larson as a fact witness in their case-in-chief. Plaintiffs contend that Dr. Larson was an actor or viewer with respect to the occurrences forming the subject matter of the lawsuit, and should be treated as an ordinary fact witness, albeit with a certain expertise. Among other things, Dr. Larson has published research, independent of his litigation work for the defendant, which directly addresses fact issues in this case. Simply because the defendant chose to separately retain Dr. Larson as an expert does not change this dynamic, nor should it be used to disrupt plaintiffs' presentation of their case. Defendant disagrees with plaintiffs' characterization of Dr. Larson. His involvement in this litigation relates to his expert observations about the geology of the shoreline and has nothing to do with the facts associated with how the jetties in the St. Joseph harbor function or whether they cause erosion to plaintiffs' properties. Plaintiffs have also expressed a concern about being able to cross-examine Dr. Larson beyond the scope of defendant's direct exam.

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Case 1:99-cv-04451-ECH

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Dated: May 23, 2007

Respectfully submitted,

s/John B. Ehret by Terry M. Petrie John B. Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Telephone: (708) 748-8975 Facsimile: (708) 748-7661 [email protected] Counsel for Banks plaintiffs

MATTHEW J. McKEOWN Acting Assistant Attorney General Environment and Natural Resources Division

s/Drew W. Marrocco by Terry M. Petrie Drew W. Marrocco, Esq. Sonnenschein Nath & Rosenthal LLP 1301 K Street, N.W. Suite 600, East Tower Washington, D.C. 20005 Telephone: (202) 408-6387 Facsimile: (202) 408-6399 [email protected] Counsel for Stone plaintiffs

s/Terry M. Petrie TERRY M. PETRIE Environment and Natural Resources Division U.S. Department of Justice 1961 Stout Street, 8th Floor Denver, CO 80294 Telephone: 303-844-1369 Facsimile: 303-844-1350 [email protected] Attorney for Defendant

s/Eugene J. Frett by Terry M. Petrie Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603 Telephone: (312) 641-4874 Facsimile: (312) 641-6492 [email protected] Counsel for Frett plaintiffs

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Case 1:99-cv-04451-ECH

Document 223

Filed 05/23/2007

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CERTIFICATE OF SERVICE I certify that I have served a copy of the "JOINT PRELIMINARY TRIAL SCHEDULE" by electronic filing with the Unites States Court of Federal Claims on the 23rd day of May, 2007 on: John Ehret, Esq. 20860 Greenwood Drive Olympia Fields, IL 60461 Counsel for Banks Plaintiffs **************** Drew Marrocco, Esq. Sonnenschein Nath & Rosenthal LLP 1301 K Street, NW Suite 600, East Tower Washington, DC 20005 Counsel for Stone Plaintiffs **************** Eugene J. Frett, Esq. Sperling & Slater, P.C. 55 West Monroe Street Suite 3200 Chicago, Illinois 60603 Counsel for Frett Plaintiffs ****************

s/Terry M. Petrie TERRY M. PETRIE